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Cement Marketing Company of India, Bangalore Vs. State of Mysore and Another
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HEGDE, J.1. These are connected appeals by special leave. Herein the question of the appellants liability to pay sales tax in respect of certain transactions made in the years 1959-1960, 1960-1961 and 1962-1963 arises for consideration.2. The appellant was the selling agent of the State Trading Corporation of India (Private) Ltd. in the years in question. It had supplied to several consumers cement. The question is whether those supplies can be considered as "sales" under entry 54 of List II of the Seventh Schedule to the Constitution. The appellants contention is that they are not "sales" as the supplies in question were made on the basis of Cement Control Order, 1956, and the Mysore Cement Rationing and Licensing Order, 1957. Its further contention is that in computing the sales tax, excise duty said should not have been taken into consideration, firstly in view of rule 6(5)(j) of the Mysore Sales Tax Rules and nextly that the department is estopped from claiming the same in view of the earlier directions given by it. The Sales Tax Officer rejected both these contentions and levied the impugned assessments. The appellant without taking the matters in appeal under the Mysore Sales Tax Act challenged the validity of the assessments under article 226 of the Constitution before the High Court. The High Court rejected the appellants writ petitions. Hence these appeals.3. The question whether the transactions with which we are concerned in these appeals are "sales" is a mixed question of law and fact. Before that question can be decided, the fact-finding authorities under the Act should find out the various ingredients of the transactions and see whether they amount to "sales". Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions.Even the contention of the appellant relating to the inclusion of the excise duty in the total turnover is essentially a question that should have been urged before the appellate authority. The appellate authority is competent to go into questions of fact as well as of law. In particular the contention of the appellant that the department is estopped from including the excise duty paid in the total turnover is one that should have been appropriately taken before the appellate authority.4.
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0[ds]The question whether the transactions with which we are concerned in these appeals are "sales" is a mixed question of law and fact. Before that question can be decided, theauthorities under the Act should find out the various ingredients of the transactions and see whether they amount to "sales". Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions.Even the contention of the appellant relating to the inclusion of the excise duty in the total turnover is essentially a question that should have been urged before the appellate authority. The appellate authority is competent to go into questions of fact as well as of law. In particular the contention of the appellant that the department is estopped from including the excise duty paid in the total turnover is one that should have been appropriately taken before the appellate authority.
| 0 | 465 | 210 |
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HEGDE, J.1. These are connected appeals by special leave. Herein the question of the appellants liability to pay sales tax in respect of certain transactions made in the years 1959-1960, 1960-1961 and 1962-1963 arises for consideration.2. The appellant was the selling agent of the State Trading Corporation of India (Private) Ltd. in the years in question. It had supplied to several consumers cement. The question is whether those supplies can be considered as "sales" under entry 54 of List II of the Seventh Schedule to the Constitution. The appellants contention is that they are not "sales" as the supplies in question were made on the basis of Cement Control Order, 1956, and the Mysore Cement Rationing and Licensing Order, 1957. Its further contention is that in computing the sales tax, excise duty said should not have been taken into consideration, firstly in view of rule 6(5)(j) of the Mysore Sales Tax Rules and nextly that the department is estopped from claiming the same in view of the earlier directions given by it. The Sales Tax Officer rejected both these contentions and levied the impugned assessments. The appellant without taking the matters in appeal under the Mysore Sales Tax Act challenged the validity of the assessments under article 226 of the Constitution before the High Court. The High Court rejected the appellants writ petitions. Hence these appeals.3. The question whether the transactions with which we are concerned in these appeals are "sales" is a mixed question of law and fact. Before that question can be decided, the fact-finding authorities under the Act should find out the various ingredients of the transactions and see whether they amount to "sales". Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions.Even the contention of the appellant relating to the inclusion of the excise duty in the total turnover is essentially a question that should have been urged before the appellate authority. The appellate authority is competent to go into questions of fact as well as of law. In particular the contention of the appellant that the department is estopped from including the excise duty paid in the total turnover is one that should have been appropriately taken before the appellate authority.4.
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The question whether the transactions with which we are concerned in these appeals are "sales" is a mixed question of law and fact. Before that question can be decided, theauthorities under the Act should find out the various ingredients of the transactions and see whether they amount to "sales". Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions.Even the contention of the appellant relating to the inclusion of the excise duty in the total turnover is essentially a question that should have been urged before the appellate authority. The appellate authority is competent to go into questions of fact as well as of law. In particular the contention of the appellant that the department is estopped from including the excise duty paid in the total turnover is one that should have been appropriately taken before the appellate authority.
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Jagdish Chander Chatterjee and Ors Vs. Shri Kishan and Anr
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properly terminated before the suit. The point for consideration is what is the position of the parties before the Court with regard to the relief claimed by the landlord in his eviction suit.9. It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act. It is pointed out by this Court in Anand Niwas (Private) Ltd. v. Anandji Kalyanji Pedhi, 1964 (4) SCR 892 at page 908 = (AIR 1965 SC 414 ):"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant". Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute". These observations have been made with reference to the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947. But they equally apply to the provisions of the Act with which we are concerned. The protection given to B. N. Chatterji was personal to him and if that protection is withdrawn either because there is a change in the statute or because the person who is to be personally protected is no longer living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in a proceeding of the nature with which we are concerned.10. It is obvious that the appellant landlords right to proceed with the appeal with a view to obtain possession of his premises did survive under Order 22 Rule 4 read with rule 11, Civil Procedure Code. Where the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal. Therefore, the heirs and legal representatives of the aforesaid B. N. Chatterji were rightly brought on record and the appeal had to proceed.11. Under sub-clause (ii) of R. 4 of Order 22, Civil Procedure Code any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representative could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.12. The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of tenant. For this reliance was placed on the definition of the word tenant given in Section 3, clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context - "tenant" means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of tenant reproduced above. Therefore, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be tenant within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.13
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1[ds]7. In our opinion there is no substance in this appeal. The original tenant of the premises was B. N. Chatterji. The landlord had alleged in the suit that by a notice dated 26-6-1962 served upon the tenant, the tenancy had been duly terminated. This was not denied in the written statement nor was an issue demanded at the time of the trial. However, the point being essentially a point of law, the learned Judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned counsel for the appellant before us that the learned Judge should have remanded the case for a determination of that question.The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of tenant. For this reliance was placed on the definition of the word tenant given in Section 3, clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context - "tenant" means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of tenant reproduced above. Therefore, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be tenant within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.13. As already stated, all contentions except those which are personal to the deceased were open to the legal representatives to put forward in the second appeal. The contention about the validity of the notice for the termination of the tenancy was one such contention on which they could have supported the decision of the District Court. But as already pointed out the learned Judge has correctly decided that the contractual tenancy had been duly terminated by notice. Apart from that point no other point was urged before the High Court or before us and hence the present appeal must fail.
| 1 | 2,352 | 739 |
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properly terminated before the suit. The point for consideration is what is the position of the parties before the Court with regard to the relief claimed by the landlord in his eviction suit.9. It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act. It is pointed out by this Court in Anand Niwas (Private) Ltd. v. Anandji Kalyanji Pedhi, 1964 (4) SCR 892 at page 908 = (AIR 1965 SC 414 ):"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant". Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute". These observations have been made with reference to the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947. But they equally apply to the provisions of the Act with which we are concerned. The protection given to B. N. Chatterji was personal to him and if that protection is withdrawn either because there is a change in the statute or because the person who is to be personally protected is no longer living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in a proceeding of the nature with which we are concerned.10. It is obvious that the appellant landlords right to proceed with the appeal with a view to obtain possession of his premises did survive under Order 22 Rule 4 read with rule 11, Civil Procedure Code. Where the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal. Therefore, the heirs and legal representatives of the aforesaid B. N. Chatterji were rightly brought on record and the appeal had to proceed.11. Under sub-clause (ii) of R. 4 of Order 22, Civil Procedure Code any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representative could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.12. The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of tenant. For this reliance was placed on the definition of the word tenant given in Section 3, clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context - "tenant" means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of tenant reproduced above. Therefore, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be tenant within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.13
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7. In our opinion there is no substance in this appeal. The original tenant of the premises was B. N. Chatterji. The landlord had alleged in the suit that by a notice dated 26-6-1962 served upon the tenant, the tenancy had been duly terminated. This was not denied in the written statement nor was an issue demanded at the time of the trial. However, the point being essentially a point of law, the learned Judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned counsel for the appellant before us that the learned Judge should have remanded the case for a determination of that question.The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of tenant. For this reliance was placed on the definition of the word tenant given in Section 3, clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context - "tenant" means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of tenant reproduced above. Therefore, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be tenant within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.13. As already stated, all contentions except those which are personal to the deceased were open to the legal representatives to put forward in the second appeal. The contention about the validity of the notice for the termination of the tenancy was one such contention on which they could have supported the decision of the District Court. But as already pointed out the learned Judge has correctly decided that the contractual tenancy had been duly terminated by notice. Apart from that point no other point was urged before the High Court or before us and hence the present appeal must fail.
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Official Trustee Of West Bengal Vs. Stephen Court Ltd
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as provided for in Chapter XIII of the Calcutta High Court Original Side Rules. The High Court in exercise of the said jurisdiction could not adjudicate as to whether an earlier order passed by it was null and void and was, thus, liable to be set aside. What was questioned by the Official Trustee by taking out an Originating Summons was in effect and substance not only the order passed by the High Court itself but also its own act which had attained finality.42. We have noticed hereinbefore that the Official Trustee dealt with the property in exercise of its jurisdiction to administer the trust property, in respect whereof the High Court could issue directions from time to time. Once it is held that the Official Trustee either on its own or under the directions of the High Court could grant extension of lease, its action can be subjected to challenge only in an appropriate proceeding. The Official Trustee no doubt holds a position of trust but no finding of fact has been arrived that it had misused its position. The High Court in passing its order took all precautions, which were required of it. The High Court accepted all the contentions of the Official Trustee not only by enhancing the quantum of rent payable by the Company, but also appointing a valuer for the purpose of arriving at a reasonable quantum of rent, which might become payable on the expiry of the period of lease.43. It has not been suggested that the Official Trustee was not bound by the said order. It could only take a different stand in the said proceeding. It could not initiate a fresh proceeding provided it was maintainable. Such proceedings would have been maintainable, inter alia, if the dealings by and between the Company and the Official Trustee was founded on or otherwise vitiated by fraud. Even a suit for setting aside an order passed by a court having competent jurisdiction would be maintainable on limited grounds. Only because the order passed by a court is otherwise erroneous or causes a hardship, the same by itself may not be a ground to set aside an order that was validly passed by a court of competent jurisdiction.44. Even otherwise the Official Trustee could not have altered its position. It could not have prevaricated its stand from time to time. It was estopped and precluded from filing a fresh application. 45. In Cooke v. Rickman [(1911) 2 KB 1125] , it was held that the rule of estoppel could not be restricted to a matter in issue, stating : "The rule laid down in Hawlett v. Tarte (10 C.B. (N.S.) 813 was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel" [See also Humphries v. Humphries 1910 (2) KB 531] 46. In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court held : "While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict." 47. It was further held : "The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. [See also Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (1981) 1 All ER 897.]" 48. Mr. Ray contended that the learned Single Judge did not assign any reason in support of its order. Even if no reason has been assigned, it could have been set aside only by an appellate court. When an order attained finality, it cannot be set aside on the premise that no reason had therefor been assigned.49. It was also not a case where the parties were at issue in strict sense of the term. The Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to contend that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions.50. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of res judicata and in particular that of constructive res judicata shall apply in the aforementioned fact situation. 51. In Pawan Kumar Gupta v. Rochi Ram Nag Deo [(1999) 4 SCC 243] , it is stated : "The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata." 52. [See also Ferro Alloys Corporation Limited and Another v. Union of India and Others (1999) 4 SCC 149 ].
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1[ds]15. Peter Paul owned merely a piece of land. It executed a deed of lease for a period of 99 years. The lessor, therefore, was entitled to the only rent payable in terms of the said 1919 deed of lease.Even the assignment was required to be made by reason of a registered document, it is beyond any cavil of doubt that as the Official Trustee had all along been receiving stipulated monthly rent from the Company, it was, thus, admitted and acknowledged to be the lessee in respect of the leasehold. The Official Trustee not only accepted the rent, but also allowed the Company to raise a huge structure. It, therefore, accepted the Company as the lessee in respect of the said property.23. The Company, therefore, for all intent and purport became a lessee under the Official Trustee. Although in a case of this nature, applicability of Section 53-A of the Transfer of Property Act may not be of much significance, but whether as an assignee of the leasehold or as a monthly tenant, the Company was entitled to protect its possession. Rightly or wrongly, the question of renewal of the said lease for a further period of sixty years came to be mooted. The offer of the Company was that at the end of the period of lease, the property would vest in the Official Trustee. It is again beyond any doubt or dispute that the Official Trustee could have granted a lease. It could have also extended the period of lease. It could have furthermore entered into a new arrangement with the lessee in possession. It was, therefore, within the province of the Official Trustee to deal with the property in any manner, he thought it fit, subject, of course, to any direction which could be issued by the High Court in exercise of its jurisdiction under Section 302 of the Succession Act and Section 13 of the 1913 Act. The Official Trustee being a statutory authority would be presumed to be aware and understand the provisions of the said Act. It, therefore, instead of dealing with the matter itself asked the Company to file an appropriate application, pursuant whereto the application was filed, no jurisdictional question was could be raised. The Companys locus to maintain the application was not questioned. True an affidavit in opposition had been filed, but it is equally true that therein certain suggestions were made; one of them being enhancement in the quantum of rent. The High Court passed an order enhancing the quantum of rent, which was beneficial to the Officer Trustee. It accepted the same without any demur. Benefit of the order was, thus, taken. It was only at its suggestion, a valuer was appointed. The recommendations of the valuer as regards the quantum of monthly rent which would be payable at the end of the period of lease was not questioned. The High Court also accepted the same. The order of the High Court dated 17.04.1984 must be judged in the aforementioned factual backdrop. The High Court for all intent and purport accepted the suggestions of the Official Trustee.24. Indisputably, again no appeal was preferred therefrom. Mr. Ray made a faint suggestion that the said order being not a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court was not appealable. Even that be so, an application before this Court under Article 136 of the Constitution of India would lie. No such application was also filed. It was, thus, allowed to attain finality. The parties acted thereupon. The Official Trustee accepted the said judgment and executed a deed of lease strictly in terms thereof.It is true, as was submitted by Mr. Ray, that this Court therein observed that the Official Trustees Act does not envisage any application moved by a person other than the one who was beneficially interested in any trust property or any trustee thereof, but no occasion arose therein for consideration as to what would be the true meaning and purport of the expression "beneficially interested" in the trust property.28. We have noticed hereinbefore that this Court opined that an objector who was a tenant on the ground floor of the said building adjacent to the vacant plot of land of appellant trust had locus standi to Raise anThe decision in Committee of Management of Pachaiyappas Trust (supra) therefore, in our opinion, does not assist the appellant. In that case, the order of the High Court did not attain finality and had not been accepted.34. The principles of estoppel, waiver, acquiescence or res judicata provide to procedural matter. The said provisions are applied to put an end to a subsequent litigation. As would appear from the decisions made thereafter, if the order of the 1984 order of the High Court was not a nullity, the same would apply.35. A distinction indisputably exists between an order which is wrong or void on the one hand, and which having been passed by a court lacking inherent jurisdiction and, thus, being a nullity on the other.In our opinion, the application under Section 302 of the Succession Act by the Company was maintainable and, thus, the High Court was competent to entertain the same.41. An Originating Summons is maintainable under certain situations, as provided for in Chapter XIII of the Calcutta High Court Original Side Rules. The High Court in exercise of the said jurisdiction could not adjudicate as to whether an earlier order passed by it was null and void and was, thus, liable to be set aside. What was questioned by the Official Trustee by taking out an Originating Summons was in effect and substance not only the order passed by the High Court itself but also its own act which had attained finality.42. We have noticed hereinbefore that the Official Trustee dealt with the property in exercise of its jurisdiction to administer the trust property, in respect whereof the High Court could issue directions from time to time. Once it is held that the Official Trustee either on its own or under the directions of the High Court could grant extension of lease, its action can be subjected to challenge only in an appropriate proceeding. The Official Trustee no doubt holds a position of trust but no finding of fact has been arrived that it had misused its position. The High Court in passing its order took all precautions, which were required of it. The High Court accepted all the contentions of the Official Trustee not only by enhancing the quantum of rent payable by the Company, but also appointing a valuer for the purpose of arriving at a reasonable quantum of rent, which might become payable on the expiry of the period of lease.43. It has not been suggested that the Official Trustee was not bound by the said order. It could only take a different stand in the said proceeding. It could not initiate a fresh proceeding provided it was maintainable. Such proceedings would have been maintainable, inter alia, if the dealings by and between the Company and the Official Trustee was founded on or otherwise vitiated by fraud. Even a suit for setting aside an order passed by a court having competent jurisdiction would be maintainable on limited grounds. Only because the order passed by a court is otherwise erroneous or causes a hardship, the same by itself may not be a ground to set aside an order that was validly passed by a court of competent jurisdiction.44. Even otherwise the Official Trustee could not have altered its position. It could not have prevaricated its stand from time to time. It was estopped and precluded from filing a fresh application.Mr. Ray contended that the learned Single Judge did not assign any reason in support of its order. Even if no reason has been assigned, it could have been set aside only by an appellate court. When an order attained finality, it cannot be set aside on the premise that no reason had therefor been assigned.49. It was also not a case where the parties were at issue in strict sense of the term. The Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to contend that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions.50. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of res judicata and in particular that of constructive res judicata shall apply in the aforementioned fact situation.
| 1 | 7,941 | 1,639 |
### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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as provided for in Chapter XIII of the Calcutta High Court Original Side Rules. The High Court in exercise of the said jurisdiction could not adjudicate as to whether an earlier order passed by it was null and void and was, thus, liable to be set aside. What was questioned by the Official Trustee by taking out an Originating Summons was in effect and substance not only the order passed by the High Court itself but also its own act which had attained finality.42. We have noticed hereinbefore that the Official Trustee dealt with the property in exercise of its jurisdiction to administer the trust property, in respect whereof the High Court could issue directions from time to time. Once it is held that the Official Trustee either on its own or under the directions of the High Court could grant extension of lease, its action can be subjected to challenge only in an appropriate proceeding. The Official Trustee no doubt holds a position of trust but no finding of fact has been arrived that it had misused its position. The High Court in passing its order took all precautions, which were required of it. The High Court accepted all the contentions of the Official Trustee not only by enhancing the quantum of rent payable by the Company, but also appointing a valuer for the purpose of arriving at a reasonable quantum of rent, which might become payable on the expiry of the period of lease.43. It has not been suggested that the Official Trustee was not bound by the said order. It could only take a different stand in the said proceeding. It could not initiate a fresh proceeding provided it was maintainable. Such proceedings would have been maintainable, inter alia, if the dealings by and between the Company and the Official Trustee was founded on or otherwise vitiated by fraud. Even a suit for setting aside an order passed by a court having competent jurisdiction would be maintainable on limited grounds. Only because the order passed by a court is otherwise erroneous or causes a hardship, the same by itself may not be a ground to set aside an order that was validly passed by a court of competent jurisdiction.44. Even otherwise the Official Trustee could not have altered its position. It could not have prevaricated its stand from time to time. It was estopped and precluded from filing a fresh application. 45. In Cooke v. Rickman [(1911) 2 KB 1125] , it was held that the rule of estoppel could not be restricted to a matter in issue, stating : "The rule laid down in Hawlett v. Tarte (10 C.B. (N.S.) 813 was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel" [See also Humphries v. Humphries 1910 (2) KB 531] 46. In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court held : "While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict." 47. It was further held : "The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. [See also Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (1981) 1 All ER 897.]" 48. Mr. Ray contended that the learned Single Judge did not assign any reason in support of its order. Even if no reason has been assigned, it could have been set aside only by an appellate court. When an order attained finality, it cannot be set aside on the premise that no reason had therefor been assigned.49. It was also not a case where the parties were at issue in strict sense of the term. The Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to contend that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions.50. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of res judicata and in particular that of constructive res judicata shall apply in the aforementioned fact situation. 51. In Pawan Kumar Gupta v. Rochi Ram Nag Deo [(1999) 4 SCC 243] , it is stated : "The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata." 52. [See also Ferro Alloys Corporation Limited and Another v. Union of India and Others (1999) 4 SCC 149 ].
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High Court dated 17.04.1984 must be judged in the aforementioned factual backdrop. The High Court for all intent and purport accepted the suggestions of the Official Trustee.24. Indisputably, again no appeal was preferred therefrom. Mr. Ray made a faint suggestion that the said order being not a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court was not appealable. Even that be so, an application before this Court under Article 136 of the Constitution of India would lie. No such application was also filed. It was, thus, allowed to attain finality. The parties acted thereupon. The Official Trustee accepted the said judgment and executed a deed of lease strictly in terms thereof.It is true, as was submitted by Mr. Ray, that this Court therein observed that the Official Trustees Act does not envisage any application moved by a person other than the one who was beneficially interested in any trust property or any trustee thereof, but no occasion arose therein for consideration as to what would be the true meaning and purport of the expression "beneficially interested" in the trust property.28. We have noticed hereinbefore that this Court opined that an objector who was a tenant on the ground floor of the said building adjacent to the vacant plot of land of appellant trust had locus standi to Raise anThe decision in Committee of Management of Pachaiyappas Trust (supra) therefore, in our opinion, does not assist the appellant. In that case, the order of the High Court did not attain finality and had not been accepted.34. The principles of estoppel, waiver, acquiescence or res judicata provide to procedural matter. The said provisions are applied to put an end to a subsequent litigation. As would appear from the decisions made thereafter, if the order of the 1984 order of the High Court was not a nullity, the same would apply.35. A distinction indisputably exists between an order which is wrong or void on the one hand, and which having been passed by a court lacking inherent jurisdiction and, thus, being a nullity on the other.In our opinion, the application under Section 302 of the Succession Act by the Company was maintainable and, thus, the High Court was competent to entertain the same.41. An Originating Summons is maintainable under certain situations, as provided for in Chapter XIII of the Calcutta High Court Original Side Rules. The High Court in exercise of the said jurisdiction could not adjudicate as to whether an earlier order passed by it was null and void and was, thus, liable to be set aside. What was questioned by the Official Trustee by taking out an Originating Summons was in effect and substance not only the order passed by the High Court itself but also its own act which had attained finality.42. We have noticed hereinbefore that the Official Trustee dealt with the property in exercise of its jurisdiction to administer the trust property, in respect whereof the High Court could issue directions from time to time. Once it is held that the Official Trustee either on its own or under the directions of the High Court could grant extension of lease, its action can be subjected to challenge only in an appropriate proceeding. The Official Trustee no doubt holds a position of trust but no finding of fact has been arrived that it had misused its position. The High Court in passing its order took all precautions, which were required of it. The High Court accepted all the contentions of the Official Trustee not only by enhancing the quantum of rent payable by the Company, but also appointing a valuer for the purpose of arriving at a reasonable quantum of rent, which might become payable on the expiry of the period of lease.43. It has not been suggested that the Official Trustee was not bound by the said order. It could only take a different stand in the said proceeding. It could not initiate a fresh proceeding provided it was maintainable. Such proceedings would have been maintainable, inter alia, if the dealings by and between the Company and the Official Trustee was founded on or otherwise vitiated by fraud. Even a suit for setting aside an order passed by a court having competent jurisdiction would be maintainable on limited grounds. Only because the order passed by a court is otherwise erroneous or causes a hardship, the same by itself may not be a ground to set aside an order that was validly passed by a court of competent jurisdiction.44. Even otherwise the Official Trustee could not have altered its position. It could not have prevaricated its stand from time to time. It was estopped and precluded from filing a fresh application.Mr. Ray contended that the learned Single Judge did not assign any reason in support of its order. Even if no reason has been assigned, it could have been set aside only by an appellate court. When an order attained finality, it cannot be set aside on the premise that no reason had therefor been assigned.49. It was also not a case where the parties were at issue in strict sense of the term. The Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to contend that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions.50. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of res judicata and in particular that of constructive res judicata shall apply in the aforementioned fact situation.
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Gyan Chand & Others Vs. State of Haryana & Others
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not be superseded by the Government under the provisions of that section. The explanation was to be sent by the Committee within 21 days from the receipt of the communication and in case the Committee failed to send the explanation ex parte orders were to be made. The Vice-President sent a reply dated March 19, 1969 saying that the allegations contained in the memorandum sent to the Committee were baseless and without any foundation. It was stated that the allegations had been levelled merely as a cloak to serve extraneous ends of somehow superseding the Municipal Committee. In this reply it was mentioned that Shri P. N. Bhalla who had been working as an Executive Officer of the Committee had been removed for the reasons which had been mentioned in the show cause notice. The charges which were levelled against him contained various matters which were common to the items mentioned in the show cause notice sent to the Committee. Shri Bhalla had challenged his removal in a petition which was still pending. It was maintained that since the aforesaid matter was sub-judice it was not proper and might amount to contempt of court to adjudicate upon the matters which were common to the show cause notice and the allegations against Bhalla. It was further pointed out in the reply that a detailed answer could not be given unless inspection was allowed of the various records and files relating to the allegations made Inter alia, the most important document was the report made by Shri V. P. Dhir, Deputy Director, Urban Local Bodies, Haryana, who had inquired into the affairs of the Committee. It was essential to inspect the file containing his report before any reply could be given It was requested that time be extended for giving reply to the allegations made in the show cause notice till the writ petition filed by Bhalla had been disposed of no reply was apparently sent to this letter by the Government. An order was made on April 9, 1969 superseding the Committee under Section 238 of the Act and its powers were to be exercised by the S. D. O. Civil as Administrator. A schedule of the reasons was given in the notification which contained mostly the same allegations which were contained in the statement attached to the show cause notice.3. The appellants filed a petition under Articles 226 and 227 of the Constitution in the Punjab and Haryana High Court challenging the aforesaid notification of supersession of the Committee. This came up before a Division Bench consisting of Mehr Singh, C. J. and Prem Chand Jain, J. on April 16, 1969. The petition was dismissed in limine although the learned judges recorded an order. It is somewhat unfortunate that a copy of the writ petition has not been produced in this Court. Presumably the allegations were on the same lines as made in the petition for special leave before us. But in the absence of a copy of the writ petition we new not refer in detail to the allegations made and the contentions raised by the appellants before the High Court. It is, however, apparent and is abundantly clear from the order of the High Court that allegations of male fines had been made and it had been urged that the Government had not acted in a bona fide manner. The learned judges were largely influenced by the fact that the Committee had not sent any explanation or reply to the show cause notice. It was therefore considered that the charges and allegations made against it stood unrebutted. A constitution bench of this Court has observed in Ram Saran Dass v. State of Punjab, Civil Appeal No. 36 of 1963, D/- 16-9-1963 (SC), as follows :"As we have briefly indicated the petition filed by the appellant makes serious allegations in support of his case that the impugned order amounts to punishment and had been passed male fide It appears that the High Court was not impressed by these allegations, and so chose to dismiss the petition summarily. In our opinion, the High Court should not have adopted such a course in the present case. It may sound elementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High Court under Article 226 and contends that the termination of his services, though ostensibly made in exercise of the power conferred under Rule 23 of the Rules, really amounts to his dismissal or that its exercise is male fide, the High Court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were, what would be the result of the said finding on his argument that the impugned order amounts to dismiss, or has been passed mala fide".In the present case the appellants are responsible persons. Appellant No. 2 is the President and Appellant No. 3 is the Senior Vice-President of the Committee which has been superseded. The other appellants had been elected members of that Committee. In our judgment in a case of the pray sent kind the writ petition ought not to have been dismissed in the manner in which it was done without obtaining any return from the respondents and considering the same.4. Mr. M. C. Chagla for the appellants has pointed out that certain affidavits have been filed under the orders of this Court by the respondent and has urged that the legality and validity as also the male fide nature of the impugned order could be examined in this appeal by this Court. We do not consider that that would be a proper course to follow. It is for the High Court to issue a rule and hear and dispose of the writ petition after returns have been filed by the respondents.
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1[ds]It is somewhat unfortunate that a copy of the writ petition has not been produced in this Court. Presumably the allegations were on the same lines as made in the petition for special leave before us. But in the absence of a copy of the writ petition we new not refer in detail to the allegations made and the contentions raised by the appellants before the High Court. It is, however, apparent and is abundantly clear from the order of the High Court that allegations of male fines had been made and it had been urged that the Government had not acted in a bona fide manner. The learned judges were largely influenced by the fact that the Committee had not sent any explanation or reply to the show cause notice. It was therefore considered that the charges and allegations made against it stoodthe present case the appellants are responsible persons. Appellant No. 2 is the President and Appellant No. 3 is the Seniorof the Committee which has been superseded. The other appellants had been elected members of that Committee. In our judgment in a case of the pray sent kind the writ petition ought not to have been dismissed in the manner in which it was done without obtaining any return from the respondents and considering the same.Mr. M. C. Chagla for the appellants has pointed out that certain affidavits have been filed under the orders of this Court by the respondent and has urged that the legality and validity as also the male fide nature of the impugned order could be examined in this appeal by this Court.We do not consider that that would be a proper course to follow. It is for the High Court to issue a rule and hear and dispose of the writ petition after returns have been filed by the respondents.
| 1 | 1,413 | 327 |
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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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not be superseded by the Government under the provisions of that section. The explanation was to be sent by the Committee within 21 days from the receipt of the communication and in case the Committee failed to send the explanation ex parte orders were to be made. The Vice-President sent a reply dated March 19, 1969 saying that the allegations contained in the memorandum sent to the Committee were baseless and without any foundation. It was stated that the allegations had been levelled merely as a cloak to serve extraneous ends of somehow superseding the Municipal Committee. In this reply it was mentioned that Shri P. N. Bhalla who had been working as an Executive Officer of the Committee had been removed for the reasons which had been mentioned in the show cause notice. The charges which were levelled against him contained various matters which were common to the items mentioned in the show cause notice sent to the Committee. Shri Bhalla had challenged his removal in a petition which was still pending. It was maintained that since the aforesaid matter was sub-judice it was not proper and might amount to contempt of court to adjudicate upon the matters which were common to the show cause notice and the allegations against Bhalla. It was further pointed out in the reply that a detailed answer could not be given unless inspection was allowed of the various records and files relating to the allegations made Inter alia, the most important document was the report made by Shri V. P. Dhir, Deputy Director, Urban Local Bodies, Haryana, who had inquired into the affairs of the Committee. It was essential to inspect the file containing his report before any reply could be given It was requested that time be extended for giving reply to the allegations made in the show cause notice till the writ petition filed by Bhalla had been disposed of no reply was apparently sent to this letter by the Government. An order was made on April 9, 1969 superseding the Committee under Section 238 of the Act and its powers were to be exercised by the S. D. O. Civil as Administrator. A schedule of the reasons was given in the notification which contained mostly the same allegations which were contained in the statement attached to the show cause notice.3. The appellants filed a petition under Articles 226 and 227 of the Constitution in the Punjab and Haryana High Court challenging the aforesaid notification of supersession of the Committee. This came up before a Division Bench consisting of Mehr Singh, C. J. and Prem Chand Jain, J. on April 16, 1969. The petition was dismissed in limine although the learned judges recorded an order. It is somewhat unfortunate that a copy of the writ petition has not been produced in this Court. Presumably the allegations were on the same lines as made in the petition for special leave before us. But in the absence of a copy of the writ petition we new not refer in detail to the allegations made and the contentions raised by the appellants before the High Court. It is, however, apparent and is abundantly clear from the order of the High Court that allegations of male fines had been made and it had been urged that the Government had not acted in a bona fide manner. The learned judges were largely influenced by the fact that the Committee had not sent any explanation or reply to the show cause notice. It was therefore considered that the charges and allegations made against it stood unrebutted. A constitution bench of this Court has observed in Ram Saran Dass v. State of Punjab, Civil Appeal No. 36 of 1963, D/- 16-9-1963 (SC), as follows :"As we have briefly indicated the petition filed by the appellant makes serious allegations in support of his case that the impugned order amounts to punishment and had been passed male fide It appears that the High Court was not impressed by these allegations, and so chose to dismiss the petition summarily. In our opinion, the High Court should not have adopted such a course in the present case. It may sound elementary to say so, but nevertheless, we ought never to forget that justice must not only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High Court under Article 226 and contends that the termination of his services, though ostensibly made in exercise of the power conferred under Rule 23 of the Rules, really amounts to his dismissal or that its exercise is male fide, the High Court should have called upon the respondent to make a return and then considered whether the allegations made by the appellant had been proved, and if they were, what would be the result of the said finding on his argument that the impugned order amounts to dismiss, or has been passed mala fide".In the present case the appellants are responsible persons. Appellant No. 2 is the President and Appellant No. 3 is the Senior Vice-President of the Committee which has been superseded. The other appellants had been elected members of that Committee. In our judgment in a case of the pray sent kind the writ petition ought not to have been dismissed in the manner in which it was done without obtaining any return from the respondents and considering the same.4. Mr. M. C. Chagla for the appellants has pointed out that certain affidavits have been filed under the orders of this Court by the respondent and has urged that the legality and validity as also the male fide nature of the impugned order could be examined in this appeal by this Court. We do not consider that that would be a proper course to follow. It is for the High Court to issue a rule and hear and dispose of the writ petition after returns have been filed by the respondents.
### Response:
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### Explanation:
It is somewhat unfortunate that a copy of the writ petition has not been produced in this Court. Presumably the allegations were on the same lines as made in the petition for special leave before us. But in the absence of a copy of the writ petition we new not refer in detail to the allegations made and the contentions raised by the appellants before the High Court. It is, however, apparent and is abundantly clear from the order of the High Court that allegations of male fines had been made and it had been urged that the Government had not acted in a bona fide manner. The learned judges were largely influenced by the fact that the Committee had not sent any explanation or reply to the show cause notice. It was therefore considered that the charges and allegations made against it stoodthe present case the appellants are responsible persons. Appellant No. 2 is the President and Appellant No. 3 is the Seniorof the Committee which has been superseded. The other appellants had been elected members of that Committee. In our judgment in a case of the pray sent kind the writ petition ought not to have been dismissed in the manner in which it was done without obtaining any return from the respondents and considering the same.Mr. M. C. Chagla for the appellants has pointed out that certain affidavits have been filed under the orders of this Court by the respondent and has urged that the legality and validity as also the male fide nature of the impugned order could be examined in this appeal by this Court.We do not consider that that would be a proper course to follow. It is for the High Court to issue a rule and hear and dispose of the writ petition after returns have been filed by the respondents.
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Bank of Bihar Limited, Patna Vs. Commissioner of Income Tax, Bihar and Orissa
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become irrecoverable in the year of account 1950, and that the amount due in the other two accounts---B. I. G. Co. and Fulchand Srinarain-had become irrecoverable in the year 1947, and the assessees were not entitled to treat the entire amount of Rs. 4, 22, 582 as a bad debt in the year of account 1949. The Income-tax Appellate Tribunal accepted the findings of the Appellate Assistant Commissioner that the amounts due from the B. I. G. Co. and Messrs. Fulchand Srinarain had become irrecoverable in the year of account 1947 and could not be allowed as bad or doubtful debts in the assessment of profits for the year of account 1949. The finding of the Appellate Assistant Commissioner about the amount due from Messrs. Nandlal Inderchand was not challenged before the Tribunal and, in this appeal, we are not concerned with the disallowance of that amountThe Tribunal declined to refer to the High Court under section 66(1) of the Income-tax Act a statement of the case about the amounts due in the two accounts of B. I.G. Co. and Fulchand Srinarain, but the High Court, by order dated July 31, 1957, directed the Tribunal to state a case under section 66(2) on the following question" Whether, in the circumstances of the case, the income-tax department was legally justified in rejecting the claim of the assessee under section 10(2)(xi) of the Income-tax Act with regard to the amount of Rs. 2, 11, 493 claimed as bad debt for the assessment year 1950-51?"4. The High Court at the hearing of the reference held that the conclusion whether a debt had become irrecoverable and was to be treated as a bad debt in 1947 was one of fact and not liable to be reopened in a reference under section 66 of the Income-tax Act, for there was evidence on which the conclusions of the Appellate Assistant Commissioner and the Tribunal could be founded. With special leave, the assessees have appealed to this court5. Undoubtedly, on December 3, 1947, the amounts due in the accounts of B. I. G. Co. and Fulchand Srinarain were transferred to the account of Messrs. Nandlal Inderchand and the accounts were amalgamated. It also appears that Messrs. Nandlal Inderchand were interested in the two businesses, B. I. G. Co. and Fulchand Srinarain. But the Tribunal found that Messrs. Nandlal Inderchand did not guarantee the loans advanced to B. I. G. Co. and to Fulchand Srinarain. The two accounts had not been operated since the year 1946 and it appeared that in the year 1947, these two firms were not in a position to pay the amounts due by them. The Tribunal in this state of affairs held that the debts had become bad in the year 1947 and could not be allowed under section 10(2)(xi) in the year of account 1949Mr. Viswanatha Sastri for the assessees contends that it was open to the assessees to amalgamate the three accounts of the same debtor and if the debtor was in a position to pay and did pay some amounts towards the consolidated account, it could not be said that because nothing was recovered in the years prior to amalgamation the debts must be deemed to have become bad in those previous years. But there is no evidence to show that Messrs. Nandlal Inderchand were the exclusive owners of the business carried on in the names of B. I. G. Co. and Fulchand Srinarain. The finding of the income-tax authorities was that they were interested in those businesses. Again, apart from the pledge of shares of a small value, there is no evidence of any assets of, Messrs. Nandlal Inderchand which could be resorted to for satisfying the liability for debts due by the two firms---B. I. G. Co. and Fulchand Srinarain. If those two debts had become irrecoverable in 1947, by merely amalgamating them with the debt due from Messrs. Nandlal Inderchand----which was not then irrecoverable---those debts could not be revived so as to enable the assessees to write them off in a later year. In the account of Messrs. Nandlal Inderchand, an amount exceeding rupees two lakhs was due and the value of the shares pledged was less than 1/7th of the total amount due in that account. The security was, therefore, wholly insufficient to satisfy even the debt for which it was given6. The question whether a debt is a bad debt is one of fact, and if there is some evidence to justify the conclusion, it is not open to the High Court in a reference under section 66 of the Indian Income-tax Act to re-appreciate the evidence. As observed by their Lordships of the Privy Council in Commissioner of Income-tax v. S. M. Chitnavis in interpreting section 24 of the Indian Income-tax Act, 1922" Whether a debt is a bad debt, and, if so, at what point of time it became a bad debt, are questions which in their Lordships view are questions of fact, to be decided in the event of dispute by the appropriate Tribunal, and not by the ipse dixit of anyone else. The assessee has no option of declaring a debt as bad ............... In every case it is a question of fact, to be determined after consideration of all relevant circumstances7. It is true that at the material time when this case was decided, the Act contained no provision such as section 10(2)(xi) authorising deductions of bad debts of business, but it was held that such a deduction was necessarily allowable ; to refuse to do so would result in a statement of profits and gains of the year which was not true.8. In this case before the Tribunal there was evidence on which it could hold that the debt had become bad in the year 1947. If the debt had become had in the year 1947, by its mere subsequent amalgamation unilaterally made by the creditor with a debt which was recoverable, it did not cease to be bad.
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0[ds]Mr. Viswanatha Sastri for the assessees contends that it was open to the assessees to amalgamate the three accounts of the same debtor and if the debtor was in a position to pay and did pay some amounts towards the consolidated account, it could not be said that because nothing was recovered in the years prior to amalgamation the debts must be deemed to have become bad in those previous years.But there is no evidence to show that Messrs. Nandlal Inderchand were the exclusive owners of the business carried on in the names of B.I. G. Co. and FulchandSrinarain. The finding of theauthorities was that they were interested in those businesses. Again, apart from the pledge of shares of a small value, there is no evidence of any assets of, Messrs. Nandlal Inderchand which could be resorted to for satisfying the liability for debts due by the twoI. G. Co. and FulchandSrinarain. If those two debts had become irrecoverable in 1947, by merely amalgamating them with the debt due from Messrs. Nandlalwas not thendebts could not be revived so as to enable the assessees to write them off in a later year. In the account of Messrs. Nandlal Inderchand, an amount exceeding rupees two lakhs was due and the value of the shares pledged was less than 1/7th of the total amount due in that account. The security was, therefore, wholly insufficient to satisfy even the debt for which it was given6. The question whether a debt is a bad debt is one of fact, and if there is some evidence to justify the conclusion, it is not open to the High Court in a reference under section 66 of the Indianate theobserved by their Lordships of the Privy Council in Commissioner ofv. S. M. Chitnavis in interpreting section 24 of the IndianAct, 1922" Whether a debt is a bad debt, and, if so, at what point of time it became a bad debt, are questions which in their Lordships view are questions of fact, to be decided in the event of dispute by the appropriate Tribunal, and not by the ipse dixit of anyone else. The assessee has no option of declaring a debt as bad ............... In every case it is a question of fact, to be determined after consideration of all relevant circumstances7. It is true that at the material time when this case was decided, the Act contained no provision such as section 10(2)(xi) authorising deductions of bad debts of business, but it was held that such a deduction was necessarily allowable ; to refuse to do so would result in a statement of profits and gains of the year which was not true.8. In this case before the Tribunal there was evidence on which it could hold that the debt had become bad in the year 1947. If the debt had become had in the year 1947, by its mere subsequent amalgamation unilaterally made by the creditor with a debt which was recoverable, it did not cease to be bad.
| 0 | 1,446 | 552 |
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become irrecoverable in the year of account 1950, and that the amount due in the other two accounts---B. I. G. Co. and Fulchand Srinarain-had become irrecoverable in the year 1947, and the assessees were not entitled to treat the entire amount of Rs. 4, 22, 582 as a bad debt in the year of account 1949. The Income-tax Appellate Tribunal accepted the findings of the Appellate Assistant Commissioner that the amounts due from the B. I. G. Co. and Messrs. Fulchand Srinarain had become irrecoverable in the year of account 1947 and could not be allowed as bad or doubtful debts in the assessment of profits for the year of account 1949. The finding of the Appellate Assistant Commissioner about the amount due from Messrs. Nandlal Inderchand was not challenged before the Tribunal and, in this appeal, we are not concerned with the disallowance of that amountThe Tribunal declined to refer to the High Court under section 66(1) of the Income-tax Act a statement of the case about the amounts due in the two accounts of B. I.G. Co. and Fulchand Srinarain, but the High Court, by order dated July 31, 1957, directed the Tribunal to state a case under section 66(2) on the following question" Whether, in the circumstances of the case, the income-tax department was legally justified in rejecting the claim of the assessee under section 10(2)(xi) of the Income-tax Act with regard to the amount of Rs. 2, 11, 493 claimed as bad debt for the assessment year 1950-51?"4. The High Court at the hearing of the reference held that the conclusion whether a debt had become irrecoverable and was to be treated as a bad debt in 1947 was one of fact and not liable to be reopened in a reference under section 66 of the Income-tax Act, for there was evidence on which the conclusions of the Appellate Assistant Commissioner and the Tribunal could be founded. With special leave, the assessees have appealed to this court5. Undoubtedly, on December 3, 1947, the amounts due in the accounts of B. I. G. Co. and Fulchand Srinarain were transferred to the account of Messrs. Nandlal Inderchand and the accounts were amalgamated. It also appears that Messrs. Nandlal Inderchand were interested in the two businesses, B. I. G. Co. and Fulchand Srinarain. But the Tribunal found that Messrs. Nandlal Inderchand did not guarantee the loans advanced to B. I. G. Co. and to Fulchand Srinarain. The two accounts had not been operated since the year 1946 and it appeared that in the year 1947, these two firms were not in a position to pay the amounts due by them. The Tribunal in this state of affairs held that the debts had become bad in the year 1947 and could not be allowed under section 10(2)(xi) in the year of account 1949Mr. Viswanatha Sastri for the assessees contends that it was open to the assessees to amalgamate the three accounts of the same debtor and if the debtor was in a position to pay and did pay some amounts towards the consolidated account, it could not be said that because nothing was recovered in the years prior to amalgamation the debts must be deemed to have become bad in those previous years. But there is no evidence to show that Messrs. Nandlal Inderchand were the exclusive owners of the business carried on in the names of B. I. G. Co. and Fulchand Srinarain. The finding of the income-tax authorities was that they were interested in those businesses. Again, apart from the pledge of shares of a small value, there is no evidence of any assets of, Messrs. Nandlal Inderchand which could be resorted to for satisfying the liability for debts due by the two firms---B. I. G. Co. and Fulchand Srinarain. If those two debts had become irrecoverable in 1947, by merely amalgamating them with the debt due from Messrs. Nandlal Inderchand----which was not then irrecoverable---those debts could not be revived so as to enable the assessees to write them off in a later year. In the account of Messrs. Nandlal Inderchand, an amount exceeding rupees two lakhs was due and the value of the shares pledged was less than 1/7th of the total amount due in that account. The security was, therefore, wholly insufficient to satisfy even the debt for which it was given6. The question whether a debt is a bad debt is one of fact, and if there is some evidence to justify the conclusion, it is not open to the High Court in a reference under section 66 of the Indian Income-tax Act to re-appreciate the evidence. As observed by their Lordships of the Privy Council in Commissioner of Income-tax v. S. M. Chitnavis in interpreting section 24 of the Indian Income-tax Act, 1922" Whether a debt is a bad debt, and, if so, at what point of time it became a bad debt, are questions which in their Lordships view are questions of fact, to be decided in the event of dispute by the appropriate Tribunal, and not by the ipse dixit of anyone else. The assessee has no option of declaring a debt as bad ............... In every case it is a question of fact, to be determined after consideration of all relevant circumstances7. It is true that at the material time when this case was decided, the Act contained no provision such as section 10(2)(xi) authorising deductions of bad debts of business, but it was held that such a deduction was necessarily allowable ; to refuse to do so would result in a statement of profits and gains of the year which was not true.8. In this case before the Tribunal there was evidence on which it could hold that the debt had become bad in the year 1947. If the debt had become had in the year 1947, by its mere subsequent amalgamation unilaterally made by the creditor with a debt which was recoverable, it did not cease to be bad.
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### Explanation:
Mr. Viswanatha Sastri for the assessees contends that it was open to the assessees to amalgamate the three accounts of the same debtor and if the debtor was in a position to pay and did pay some amounts towards the consolidated account, it could not be said that because nothing was recovered in the years prior to amalgamation the debts must be deemed to have become bad in those previous years.But there is no evidence to show that Messrs. Nandlal Inderchand were the exclusive owners of the business carried on in the names of B.I. G. Co. and FulchandSrinarain. The finding of theauthorities was that they were interested in those businesses. Again, apart from the pledge of shares of a small value, there is no evidence of any assets of, Messrs. Nandlal Inderchand which could be resorted to for satisfying the liability for debts due by the twoI. G. Co. and FulchandSrinarain. If those two debts had become irrecoverable in 1947, by merely amalgamating them with the debt due from Messrs. Nandlalwas not thendebts could not be revived so as to enable the assessees to write them off in a later year. In the account of Messrs. Nandlal Inderchand, an amount exceeding rupees two lakhs was due and the value of the shares pledged was less than 1/7th of the total amount due in that account. The security was, therefore, wholly insufficient to satisfy even the debt for which it was given6. The question whether a debt is a bad debt is one of fact, and if there is some evidence to justify the conclusion, it is not open to the High Court in a reference under section 66 of the Indianate theobserved by their Lordships of the Privy Council in Commissioner ofv. S. M. Chitnavis in interpreting section 24 of the IndianAct, 1922" Whether a debt is a bad debt, and, if so, at what point of time it became a bad debt, are questions which in their Lordships view are questions of fact, to be decided in the event of dispute by the appropriate Tribunal, and not by the ipse dixit of anyone else. The assessee has no option of declaring a debt as bad ............... In every case it is a question of fact, to be determined after consideration of all relevant circumstances7. It is true that at the material time when this case was decided, the Act contained no provision such as section 10(2)(xi) authorising deductions of bad debts of business, but it was held that such a deduction was necessarily allowable ; to refuse to do so would result in a statement of profits and gains of the year which was not true.8. In this case before the Tribunal there was evidence on which it could hold that the debt had become bad in the year 1947. If the debt had become had in the year 1947, by its mere subsequent amalgamation unilaterally made by the creditor with a debt which was recoverable, it did not cease to be bad.
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K C Builders Vs. The Asstt Commnr Of Income Tax
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to the assessees total income and the addition was deleted by the Tribunal:Held, that it was evident from the material on record that the penalty had been imposed solely on the basis of the additional of Rs. 4 lakhs to the assessees income. If the addition was deleted, the charge of concealment of income could not be sustained. Imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961, was, therefore, not valid." 4. Commissioner of Income-Tax vs. Madanlal Sohanlal (1989) 176 I.T.R. 189 "Penalty cannot stand on its own independently of the assessment.Where, in an appeal against the assessment reopened under Section 147 of the Income-tax Act, 1961, the Appellate Tribunal deleted the addition on account of deemed dividend under Section 12(1B) read with section 2(6A) (e) of the Indian Income-tax Act, 1922, the deemed dividend which had been deleted could not from the subject-matter of imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961, because, the basis for imposition of penalty had ceased to exist. Therefore, the Tribunal was correct in cancelling the penalty imposed on account of the addition." 5. Commissioner of Income-Tax vs. Bedi and Co. (P) Ltd. (1990) 183 I.T.R. 59 "Held, that in view, of the conclusion reached by the High Court that the amount in question was not assessable, there was no basis for the imposition of penalty. The cancellation of penalty was valid.(The Supreme Court has dismissed the special petition filed by the Department against this judgment of the High Court in relation to penalty under section 271(1)(c) arising out of an assessment, wherein the addition of a loan has been cancelled by the High Court as reported in (1983) 144 ITR 352 : See (1990) 181 ITR (St.) 19-Ed.)" 6. Commissioner of Income-Tax vs. Agarwalla Brothers (1991) 189 I.T.R. 786. "Held, (i) that the fact a particular construction had not been shown in the accounts of the assessee was not relevant since this circumstance had not been recorded as one of the reasons for initiating the proceedings under section 147(a);(ii) that the Tribunal had found, after examining the entire record, that there had been no failure to disclose primary facts on the part of the assessee. The reassessment was, therefore, not valid;(iii) that penalty had been imposed consequential to the re-assessment . Since the reassessment had been set aside, the order of the Tribunal cancelling the penalty levied under Section 271(1)(c) of the Act was also legal." 7. Additional Commissioner of Income-Tax vs. Badri Prasad Kashi Prasad (1993) 200 I.T.R. 206 "Held, that the levy of penalty was based on the addition to income made by the Income-tax Officer. The addition was deleted by the Tribunal. Hence, the Tribunal was justified in cancelling the penalty." 8. Commissioner of Income-Tax vs. Roy Durlabhji (1995) 211.ITR. 470 "Held, dismissing the application for reference, that the Tribunal had set aside the penalty on the ground that the additions to income had already been deleted. Since there was no liability to tax, no penalty could be levied. The Tribunal was justified in cancelling the penalty and no question of law arose from its order." 32. The very recent judgment in the case of Hira Lal Hari Lal Bhagwati vs. C.B.I. New Delhi, JT (2003(4) SC 381 , in which one of us (Dr. AR. Lakshmanan, J.) was a member, this Court while considering the scope of the immunity granted under the Kar Vivad Scheme - Whether criminal proceedings could be initiated in respect of declaration filed under the Scheme and accepted by the Excise Department can proceed further with the prosecution and criminal conspiracy and cheating against the appellants therein. Allowing the appeals, this Court held that since the alleged criminal liability stood compound on settlement with respect of the civil issues, the FIR was erroneous and unwarranted and, therefore, the continuation of the proceedings would tantamount to double jeopardy. This Court further held that the Collector of Customs had exonerated the appellants there was no warrant for any fresh investigation and prosecution on a matter which stood settled. Further since no prima facie case of cheating and criminal conspiracy was made out the process issued is liable to be quashed. It is to be noticed that as per the Kar Vivad Samadhan Scheme, 1998 whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable. This Court further held that under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In that case, the appellants have been wholly discharged under the Customs Act, 1962 and the GCS granted immunity from prosecution. 33. In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Section 120-B of I.P.C. It is also settled law that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or or dishonest intention at the time of making promise or misrepresentation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal courts unless and until the act of the appellants could have described as culpable.
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1[ds]27. The above judgment squarely applies to the facts and circumstances of the case on hand. In this case also, similarly, the application was moved by the assessee before the Magistrate to drop the criminal proceedings which were dismissed by the Magistrate and the High Court also on a petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 to revise the order of the Additional Chief Metropolitan Magistrate has also dismissed the same and refused to refer to the order passed by the competent Tribunal. As held by this Court, the High Court is not justified in dismissing the criminal revision vide its judgment ignoring the settled law as laid down by this Court that the finding of the appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the appellate Tribunals order, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic.Hence, once the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under Section 276C is automatic.29. In our opinion, the appellants cannot be made to suffer and face the rigorous of criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income Tax Tribunal that there is no concealment of income becomes devoid of jurisdiction and under Section 254 of the Act, a finding of the Appellate Tribunal supercedes the order of the Assessing Officer under Section 143(3) more so when the Assessing Officer cancelled the penalty levied.30. In our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this Court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross-examination and, therefore, the prosecution may proceed with the trial. In our opinion, the view taken by the learned Magistrate and the High Court is fallacious. In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of Tribunal exhibited as a defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable.In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Section 120-B ofhis making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal courts unless and until the act of the appellants could have described as
| 1 | 6,664 | 769 |
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to the assessees total income and the addition was deleted by the Tribunal:Held, that it was evident from the material on record that the penalty had been imposed solely on the basis of the additional of Rs. 4 lakhs to the assessees income. If the addition was deleted, the charge of concealment of income could not be sustained. Imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961, was, therefore, not valid." 4. Commissioner of Income-Tax vs. Madanlal Sohanlal (1989) 176 I.T.R. 189 "Penalty cannot stand on its own independently of the assessment.Where, in an appeal against the assessment reopened under Section 147 of the Income-tax Act, 1961, the Appellate Tribunal deleted the addition on account of deemed dividend under Section 12(1B) read with section 2(6A) (e) of the Indian Income-tax Act, 1922, the deemed dividend which had been deleted could not from the subject-matter of imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961, because, the basis for imposition of penalty had ceased to exist. Therefore, the Tribunal was correct in cancelling the penalty imposed on account of the addition." 5. Commissioner of Income-Tax vs. Bedi and Co. (P) Ltd. (1990) 183 I.T.R. 59 "Held, that in view, of the conclusion reached by the High Court that the amount in question was not assessable, there was no basis for the imposition of penalty. The cancellation of penalty was valid.(The Supreme Court has dismissed the special petition filed by the Department against this judgment of the High Court in relation to penalty under section 271(1)(c) arising out of an assessment, wherein the addition of a loan has been cancelled by the High Court as reported in (1983) 144 ITR 352 : See (1990) 181 ITR (St.) 19-Ed.)" 6. Commissioner of Income-Tax vs. Agarwalla Brothers (1991) 189 I.T.R. 786. "Held, (i) that the fact a particular construction had not been shown in the accounts of the assessee was not relevant since this circumstance had not been recorded as one of the reasons for initiating the proceedings under section 147(a);(ii) that the Tribunal had found, after examining the entire record, that there had been no failure to disclose primary facts on the part of the assessee. The reassessment was, therefore, not valid;(iii) that penalty had been imposed consequential to the re-assessment . Since the reassessment had been set aside, the order of the Tribunal cancelling the penalty levied under Section 271(1)(c) of the Act was also legal." 7. Additional Commissioner of Income-Tax vs. Badri Prasad Kashi Prasad (1993) 200 I.T.R. 206 "Held, that the levy of penalty was based on the addition to income made by the Income-tax Officer. The addition was deleted by the Tribunal. Hence, the Tribunal was justified in cancelling the penalty." 8. Commissioner of Income-Tax vs. Roy Durlabhji (1995) 211.ITR. 470 "Held, dismissing the application for reference, that the Tribunal had set aside the penalty on the ground that the additions to income had already been deleted. Since there was no liability to tax, no penalty could be levied. The Tribunal was justified in cancelling the penalty and no question of law arose from its order." 32. The very recent judgment in the case of Hira Lal Hari Lal Bhagwati vs. C.B.I. New Delhi, JT (2003(4) SC 381 , in which one of us (Dr. AR. Lakshmanan, J.) was a member, this Court while considering the scope of the immunity granted under the Kar Vivad Scheme - Whether criminal proceedings could be initiated in respect of declaration filed under the Scheme and accepted by the Excise Department can proceed further with the prosecution and criminal conspiracy and cheating against the appellants therein. Allowing the appeals, this Court held that since the alleged criminal liability stood compound on settlement with respect of the civil issues, the FIR was erroneous and unwarranted and, therefore, the continuation of the proceedings would tantamount to double jeopardy. This Court further held that the Collector of Customs had exonerated the appellants there was no warrant for any fresh investigation and prosecution on a matter which stood settled. Further since no prima facie case of cheating and criminal conspiracy was made out the process issued is liable to be quashed. It is to be noticed that as per the Kar Vivad Samadhan Scheme, 1998 whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable. This Court further held that under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In that case, the appellants have been wholly discharged under the Customs Act, 1962 and the GCS granted immunity from prosecution. 33. In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Section 120-B of I.P.C. It is also settled law that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or or dishonest intention at the time of making promise or misrepresentation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal courts unless and until the act of the appellants could have described as culpable.
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27. The above judgment squarely applies to the facts and circumstances of the case on hand. In this case also, similarly, the application was moved by the assessee before the Magistrate to drop the criminal proceedings which were dismissed by the Magistrate and the High Court also on a petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 to revise the order of the Additional Chief Metropolitan Magistrate has also dismissed the same and refused to refer to the order passed by the competent Tribunal. As held by this Court, the High Court is not justified in dismissing the criminal revision vide its judgment ignoring the settled law as laid down by this Court that the finding of the appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the appellate Tribunals order, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic.Hence, once the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under Section 276C is automatic.29. In our opinion, the appellants cannot be made to suffer and face the rigorous of criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income Tax Tribunal that there is no concealment of income becomes devoid of jurisdiction and under Section 254 of the Act, a finding of the Appellate Tribunal supercedes the order of the Assessing Officer under Section 143(3) more so when the Assessing Officer cancelled the penalty levied.30. In our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this Court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of further cross-examination and, therefore, the prosecution may proceed with the trial. In our opinion, the view taken by the learned Magistrate and the High Court is fallacious. In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of Tribunal exhibited as a defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable.In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Section 120-B ofhis making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal courts unless and until the act of the appellants could have described as
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Kantamani Venkata Narayana & Sons Vs. First Additional Income-Tax Officer,Rajahmundry
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the managers professional income and the agricultural income of the assessee, the aggregate could not exceed Rs. one lakh, and that possession of large wealth on April 1, 1949 which was not explained justified him in inferring that there "was escapement of assessment of huge income or in any event it had resulted in under-assessment on account of the failure of the assessee in not disclosing the material facts fully and truly for the assessment years 1940-41 to 1949-50." 8. The averments made by the Income-tax Officer in his affidavit which have been accepted by the Court of first instance, prima facie, establish that the Income-tax Officer had reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income chargeable to income-tax has escaped assessment. 9. It was urged on behalf of the assessee that year after year account books and statements of account were produced by the assessee before the Income-tax Officer, and the Income-tax Officer had computed the taxable income on the materials furnished, no case for exercising the power of the Income-tax Officer under S. 34 was made out, since power to re-assess may not be exercised merely because on the same evidence the Income-tax Officer or his successor entertains a different opinion. In our view there is no force in this contention. From the affidavit of the Income-tax Officer it clearly appears that there had been considerable increase since 1938 in the investments in the money-lending transactions of the assessee and in the wealth of the assessee. The Income-tax Officer was not seeking to re-assess the income on a mere change of opinion. The increase in the wealth discovered, was wholly disproportionate to the known sources of income of the assessee. That was prima facie evidence on which he had reason to believe that the assessee had omitted to disclose fully and truly all material facts and that in consequence of such non-disclosure income had escaped assessment. The Income-tax Officer has said that no attempt was made by the assessee to furnish some reasonable proof of the source of the additional wealth: the partition deed was not produced, the hooks of account prior to 1948-49 were withheld on the plea that all the hooks were lost: no evidence was tendered to show that the father-in-law of the manager was possessed of sufficient means to give and did give any large cash amounts to him; and there was also no explanation why a large amount exceeding a lakh of rupees was not invested in the money-lending or other business. 10. The Income-tax Officer had, therefore prima facie reason to believe that information material to the assessment had been withheld, and that on account of withholding of that information income liable to tax had escaped assessment. From the mere production of the books of account it cannot be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment. The terms of the Explanation are too plain to permit an argument being reasonably advanced, that the duty of the assessee to disclose fully and truly all material facts is discharged when he produces the books of account or other evidence which has a material bearing on the assessment. It is clearly implicit in the terms of Ss. 23 and 34 of the Income-tax Act that the assessee is under a duty to disclose fully and truly material facts necessary for the assessment of the year, and that the duty is not discharged merely by the production of the books of accounts or other evidence.......... It is the duty of the assessee to bring to the notice of the Income-tax Officer particular items in the books of account or portions of document, which are relevant. Even if it be assumed that from the books produced, the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessment. 11. It was urged that since the High Court in appeal did not decide whether any primary facts on which the determination of the issue of reasonable belief in non-disclosure of material facts necessary for the assessment of the previous year and escapement of tax in consequence thereof depended were not disclosed, the Judgment of the High Court should be set aside. The learned Trial Judge has dealt with in detail the affidavits of both the assessee and the Income-tax Officer and has come to the conclusion that there was prima facie evidence of non-disclosure fully and truly of all material facts necessary for the assessment and on the materials placed before the Income-tax Officer he had reason to believe that as a consequence of that non-disclosure income had escaped assessment. The High Court in appeal after referring to the judgment in Calcutta Discount Companys case, 1961-2 SCR 241 : (AIR 1961 SC 372 ) observed:"* * without the enquiry being held by the concerned Income-tax Officer it is not possible, on the material on record, to decide whether or not the assessee omitted to or failed to disclose fully and truly all material facts necessary for his assessment for the respective years." The High Court has pointed out that no final decision about failure to disclose fully and truly all material facts bearing on the assessment of income and consequent escapement of income from assessment and tax could be recorded in the proceedings before them. It certainly was not within the province of the High Court to finally determine that question. The High Court was only concerned to decide whether the conditions which invested the Income-tax Officer with power to re-open the assessment did exist, and there is nothing in the Judgment of the High Court which indicates that they disagreed with the view of the Trial Court that the conditions did exist.
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0[ds]6. It is clear from the affidavits filed in the Court of first instance that the Income- tax Officer had received information relying upon which he had reason to believe that the assessee had not disclosed fully and truly all material facts necessary for the assessment and in consequence of non-disclosure of that information, income chargeable to tax had escaped assessmentFrom the affidavit of the Income-tax Officer it clearly appears that there had been considerable increase since 1938 in the investments in the money-lending transactions of the assessee and in the wealth of the assessee. The Income-tax Officer was not seeking to re-assess the income on a mere change of opinion. The increase in the wealth discovered, was wholly disproportionate to the known sources of income of the assessee. That was prima facie evidence on which he had reason to believe that the assessee had omitted to disclose fully and truly all material facts and that in consequence of such non-disclosure income had escaped assessment. The Income-tax Officer has said that no attempt was made by the assessee to furnish some reasonable proof of the source of the additional wealth: the partition deed was not produced, the hooks of account prior to 1948-49 were withheld on the plea that all the hooks were lost: no evidence was tendered to show that the father-in-law of the manager was possessed of sufficient means to give and did give any large cash amounts to him; and there was also no explanation why a large amount exceeding a lakh of rupees was not invested in the money-lending or other business10. The Income-tax Officer had, therefore prima facie reason to believe that information material to the assessment had been withheld, and that on account of withholding of that information income liable to tax had escaped assessment. From the mere production of the books of account it cannot be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment. The terms of the Explanation are too plain to permit an argument being reasonably advanced, that the duty of the assessee to disclose fully and truly all material facts is discharged when he produces the books of account or other evidence which has a material bearing on the assessment. It is clearly implicit in the terms of Ss. 23 and 34 of the Income-tax Act that the assessee is under a duty to disclose fully and truly material facts necessary for the assessment of the year, and that the duty is not discharged merely by the production of the books of accounts or other evidence.......... It is the duty of the assessee to bring to the notice of the Income-tax Officer particular items in the books of account or portions of document, which are relevant. Even if it be assumed that from the books produced, the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessmentThe High Court has pointed out that no final decision about failure to disclose fully and truly all material facts bearing on the assessment of income and consequent escapement of income from assessment and tax could be recorded in the proceedings before them. It certainly was not within the province of the High Court to finally determine that question. The High Court was only concerned to decide whether the conditions which invested the Income-tax Officer with power to re-open the assessment did exist, and there is nothing in the Judgment of the High Court which indicates that they disagreed with the view of the Trial Court that the conditions did existSince on the matter canvassed in these appeals there is no material change in the Section, we will only refer to the Section as amended by Act 48 of 19488. The averments made by thex Officer in his affidavit which have been accepted by the Court of first instance, prima facie, establish that thex Officer had reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income chargeable tox has escaped assessmentIn our view there is no force in this contention.
| 0 | 2,793 | 760 |
### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the managers professional income and the agricultural income of the assessee, the aggregate could not exceed Rs. one lakh, and that possession of large wealth on April 1, 1949 which was not explained justified him in inferring that there "was escapement of assessment of huge income or in any event it had resulted in under-assessment on account of the failure of the assessee in not disclosing the material facts fully and truly for the assessment years 1940-41 to 1949-50." 8. The averments made by the Income-tax Officer in his affidavit which have been accepted by the Court of first instance, prima facie, establish that the Income-tax Officer had reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income chargeable to income-tax has escaped assessment. 9. It was urged on behalf of the assessee that year after year account books and statements of account were produced by the assessee before the Income-tax Officer, and the Income-tax Officer had computed the taxable income on the materials furnished, no case for exercising the power of the Income-tax Officer under S. 34 was made out, since power to re-assess may not be exercised merely because on the same evidence the Income-tax Officer or his successor entertains a different opinion. In our view there is no force in this contention. From the affidavit of the Income-tax Officer it clearly appears that there had been considerable increase since 1938 in the investments in the money-lending transactions of the assessee and in the wealth of the assessee. The Income-tax Officer was not seeking to re-assess the income on a mere change of opinion. The increase in the wealth discovered, was wholly disproportionate to the known sources of income of the assessee. That was prima facie evidence on which he had reason to believe that the assessee had omitted to disclose fully and truly all material facts and that in consequence of such non-disclosure income had escaped assessment. The Income-tax Officer has said that no attempt was made by the assessee to furnish some reasonable proof of the source of the additional wealth: the partition deed was not produced, the hooks of account prior to 1948-49 were withheld on the plea that all the hooks were lost: no evidence was tendered to show that the father-in-law of the manager was possessed of sufficient means to give and did give any large cash amounts to him; and there was also no explanation why a large amount exceeding a lakh of rupees was not invested in the money-lending or other business. 10. The Income-tax Officer had, therefore prima facie reason to believe that information material to the assessment had been withheld, and that on account of withholding of that information income liable to tax had escaped assessment. From the mere production of the books of account it cannot be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment. The terms of the Explanation are too plain to permit an argument being reasonably advanced, that the duty of the assessee to disclose fully and truly all material facts is discharged when he produces the books of account or other evidence which has a material bearing on the assessment. It is clearly implicit in the terms of Ss. 23 and 34 of the Income-tax Act that the assessee is under a duty to disclose fully and truly material facts necessary for the assessment of the year, and that the duty is not discharged merely by the production of the books of accounts or other evidence.......... It is the duty of the assessee to bring to the notice of the Income-tax Officer particular items in the books of account or portions of document, which are relevant. Even if it be assumed that from the books produced, the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessment. 11. It was urged that since the High Court in appeal did not decide whether any primary facts on which the determination of the issue of reasonable belief in non-disclosure of material facts necessary for the assessment of the previous year and escapement of tax in consequence thereof depended were not disclosed, the Judgment of the High Court should be set aside. The learned Trial Judge has dealt with in detail the affidavits of both the assessee and the Income-tax Officer and has come to the conclusion that there was prima facie evidence of non-disclosure fully and truly of all material facts necessary for the assessment and on the materials placed before the Income-tax Officer he had reason to believe that as a consequence of that non-disclosure income had escaped assessment. The High Court in appeal after referring to the judgment in Calcutta Discount Companys case, 1961-2 SCR 241 : (AIR 1961 SC 372 ) observed:"* * without the enquiry being held by the concerned Income-tax Officer it is not possible, on the material on record, to decide whether or not the assessee omitted to or failed to disclose fully and truly all material facts necessary for his assessment for the respective years." The High Court has pointed out that no final decision about failure to disclose fully and truly all material facts bearing on the assessment of income and consequent escapement of income from assessment and tax could be recorded in the proceedings before them. It certainly was not within the province of the High Court to finally determine that question. The High Court was only concerned to decide whether the conditions which invested the Income-tax Officer with power to re-open the assessment did exist, and there is nothing in the Judgment of the High Court which indicates that they disagreed with the view of the Trial Court that the conditions did exist.
### Response:
0
### Explanation:
6. It is clear from the affidavits filed in the Court of first instance that the Income- tax Officer had received information relying upon which he had reason to believe that the assessee had not disclosed fully and truly all material facts necessary for the assessment and in consequence of non-disclosure of that information, income chargeable to tax had escaped assessmentFrom the affidavit of the Income-tax Officer it clearly appears that there had been considerable increase since 1938 in the investments in the money-lending transactions of the assessee and in the wealth of the assessee. The Income-tax Officer was not seeking to re-assess the income on a mere change of opinion. The increase in the wealth discovered, was wholly disproportionate to the known sources of income of the assessee. That was prima facie evidence on which he had reason to believe that the assessee had omitted to disclose fully and truly all material facts and that in consequence of such non-disclosure income had escaped assessment. The Income-tax Officer has said that no attempt was made by the assessee to furnish some reasonable proof of the source of the additional wealth: the partition deed was not produced, the hooks of account prior to 1948-49 were withheld on the plea that all the hooks were lost: no evidence was tendered to show that the father-in-law of the manager was possessed of sufficient means to give and did give any large cash amounts to him; and there was also no explanation why a large amount exceeding a lakh of rupees was not invested in the money-lending or other business10. The Income-tax Officer had, therefore prima facie reason to believe that information material to the assessment had been withheld, and that on account of withholding of that information income liable to tax had escaped assessment. From the mere production of the books of account it cannot be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment. The terms of the Explanation are too plain to permit an argument being reasonably advanced, that the duty of the assessee to disclose fully and truly all material facts is discharged when he produces the books of account or other evidence which has a material bearing on the assessment. It is clearly implicit in the terms of Ss. 23 and 34 of the Income-tax Act that the assessee is under a duty to disclose fully and truly material facts necessary for the assessment of the year, and that the duty is not discharged merely by the production of the books of accounts or other evidence.......... It is the duty of the assessee to bring to the notice of the Income-tax Officer particular items in the books of account or portions of document, which are relevant. Even if it be assumed that from the books produced, the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessmentThe High Court has pointed out that no final decision about failure to disclose fully and truly all material facts bearing on the assessment of income and consequent escapement of income from assessment and tax could be recorded in the proceedings before them. It certainly was not within the province of the High Court to finally determine that question. The High Court was only concerned to decide whether the conditions which invested the Income-tax Officer with power to re-open the assessment did exist, and there is nothing in the Judgment of the High Court which indicates that they disagreed with the view of the Trial Court that the conditions did existSince on the matter canvassed in these appeals there is no material change in the Section, we will only refer to the Section as amended by Act 48 of 19488. The averments made by thex Officer in his affidavit which have been accepted by the Court of first instance, prima facie, establish that thex Officer had reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income chargeable tox has escaped assessmentIn our view there is no force in this contention.
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ALOK KUMAR SINGH Vs. STATE OF U.P
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in the case of Hanuman Dutt Shukla pursuant to order of this Hon?ble Court dated 23.08.2017 in the case of Deepak Kumar 809 24 14. Excess number of candidates who were to be considered and deemed to have been selected pursuant to the orders of the Courts (SI 755 + PC 78) 833 15. Position as obtained from the above situation (3784+833) 4,617 16. Candidates who discontinued training/did not qualify in medical examination/character verification 607 17. Total number of people in service (4617-607) 4,010 24. The matters were thereafter taken-up for final hearing and we heard all the learned counsel. It was submitted by the learned counsel that since number of posts were still lying vacant, appropriate directions be issued to make appointments and the benefit of such direction be confined to those who were before the Court either as Petitioners or Intervenors. On the other hand, it was submitted on behalf of the State Government that, as stated in its various affidavits, all candidates who had secured more than 50% marks were considered at the appropriate stages in the selection process and that no more candidates who had obtained 50% or more marks were now available. It was further submitted that though there were vacancies to the tune of 8260 in the cadre of Sub-Inspector (Civil Police) and 289 in the cadre of Platoon Commander (PAC) but two subsequent selection processes were already undertaken. 25. At the outset, we must deal with the challenges raised to the judgments dated 29.01.2016 and 06.04.2017 passed by the High Court in Writ Petition No.49802 of 2015 and in Special Appeal No.416 of 2016 respectively. In our view, the High Court was right in negating the submission as regards construction of the expression ?such vacancies shall be carried forward for further selection? appearing in Rule 15(j). However, considering the facts that the present selection has seen various interventions including revision in final list on more than one occasion and considering the large number of vacancies of 607 posts where certain candidates either discontinued training or did not qualify in medical examination/character verification, we deem it appropriate, as a one time exception to direct that such 607 posts be made available in the present selection itself. One more reason for such direction is that large number of posts namely more than 8000 posts are currently available for succeeding selections. Similarly, the decision of the High Court in Special Appeal No.416 of 2016, in our view, was correct. Going by the Rules, only 12030 candidates could have been allowed to participate in Group Discussion against the number of 14256. But at this length of time, it would be inappropriate to re-do the exercise and eliminate the excess number from consideration, more particularly when the number of 14256 represents all those who secured 50% or more marks in the written examination and there are still 607 vacancies to be filled up. 26. In the order dated 31.10.2017, this Court had emphasized the adherence to eligibility of 50% while the order dated 30.11.2017 had directed completion of Selection process in the order of merit. Thereafter, the order dated 16.01.2018 categorically stated that three factors namely, merit, reservation and preference should be taken into consideration. We, therefore, cannot accept the submission that the benefit, if any, of the order or directions should be confined to those who are/were before this Court or the High Court alone, in the capacity of either the petitioners or the intervenors ignoring merit. 27. We now proceed to deal with the matters concerning vacancies and the directions that are required to be passed, in the facts and circumstances of the present matters. 28. According to the chart referred to above, though the number of candidates called for group discussion ought to have been thrice the notified vacancies i.e. 12030, the Board had called 14256 candidates. The first list viz. the result notified on 25.06.2015 had named 3784 candidates leaving out 226 unfilled posts as a result of non-availability of candidates in the category of dependents of freedom fighters as stated above. In terms of the decisions of this Court in Hanuman Dutt Shukla (supra) 809 candidates were given benefit, followed by 24 similarly situated candidates. To this number of 833 we will have to add 189 similarly situated candidates as dealt with in the order passed by this Court on 14.08.2018. The decision of this Court in Hanuman Dutt Shukla (supra) was very clear that the revised final list dated 25.06.2015 ought not to be disturbed but benefit must be given to those candidates who were excluded for use of whitener/blade etc. while answering the main examination. This aspect was repeatedly made clear that those vacancies would be in addition and therefore we have no hesitation in stating that the number of 1022 (809 in terms of Hanuman Dutt Shukla (supra), 24 in terms of case of Deepak Kumar and 189 in terms of the order dated 14.08.2018) have to be reckoned in addition to the figure of 4010. Therefore, total number of candidates who could be selected in the selection relatable to the year 2011 in any case ought not to be less than 4010+1022. Status and identity of the candidates who form the group of 1022 candidates is very clear. In this context it is to be noted that the vacancies notified are only approximate and there is nothing wrong if the number increases in the exigencies of service. 29. We now come to the issue as to what should be the approach in respect of vacant posts on two counts. The tabular chart then states that 226 posts remained unfilled as a result of non-availability of candidates in the category of dependents of freedom fighters etc. and 607 posts are lying vacant as a result of candidates who discontinued training or did not qualify in medical examination/character verification. Theoretically, 226 unfilled posts ought to be carried forward for further selection as those posts were earmarked for dependents of freedom fighters.
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0[ds]In our view, the High Court was right in negating the submission as regards construction of the expression ?such vacancies shall be carried forward for further selection? appearing in Rule 15(j). However, considering the facts that the present selection has seen various interventions including revision in final list on more than one occasion and considering the large number of vacancies of 607 posts where certain candidates either discontinued training or did not qualify in medical examination/character verification, we deem it appropriate, as a one time exception to direct that such 607 posts be made available in the present selection itself. One more reason for such direction is that large number of posts namely more than 8000 posts are currently available for succeeding selections. Similarly, the decision of the High Court in Special Appeal No.416 of 2016, in our view, was correct. Going by the Rules, only 12030 candidates could have been allowed to participate in Group Discussion against the number of14256. But at this length of time, it would be inappropriate tothe exercise and eliminate the excess number from consideration, more particularly when the number of 14256 represents all those who secured 50% or more marks in the written examination and there are still 607 vacancies to be filled up.In the order dated 31.10.2017, this Court had emphasized the adherence to eligibility of 50% while the order dated 30.11.2017 had directed completion of Selection process in the order of merit. Thereafter, the order dated 16.01.2018 categorically stated that three factors namely, merit, reservation and preference should be taken into consideration. We, therefore, cannot accept the submission that the benefit, if any, of the order or directions should be confined to those who are/were before this Court or the High Court alone, in the capacity of either the petitioners or the intervenors ignoring merit.We now proceed to deal with the matters concerning vacancies and the directions that are required to be passed, in the facts and circumstances of the present matters.According to the chart referred to above, though the number of candidates called for group discussion ought to have been thrice the notified vacancies i.e. 12030, the Board had called 14256 candidates. The first list viz. the result notified on 25.06.2015 had named 3784 candidates leaving out 226 unfilled posts as a result of14.08.2018. The decision of this Court in Hanuman Dutt Shukla (supra) was very clear that the revised final list dated 25.06.2015 ought not to be disturbed but benefit must be given to those candidates who were excluded for use of whitener/blade etc. while answering the main examination. This aspect was repeatedly made clear that those vacancies would be in addition and therefore we have no hesitation in stating that the number of 1022 (809 in terms of Hanuman Dutt Shukla (supra), 24 in terms of case of Deepak Kumar and 189 in terms of the order dated 14.08.2018) have to be reckoned in addition to the figure of 4010. Therefore, total number of candidates who could be selected in the selection relatable to the year 2011 in any case ought not to be less than 4010+1022. Status and identity of the candidates who form the group of 1022 candidates is very clear. In this context it is to be noted that the vacancies notified are only approximate and there is nothing wrong if the number increases in the exigencies of service.e now come to the issue as to what should be the approach in respect of vacant posts on two counts.The tabular chart then states that 226 posts remained unfilled as a result ofof candidates in the category of dependents of freedom fighters etc. and 607 posts are lying vacant as a result of candidates who discontinued training or did not qualify in medical examination/character verification. Theoretically, 226 unfilled posts ought to be carried forward for further selection as those posts were earmarked for dependents of freedom fighters.
| 0 | 6,045 | 712 |
### 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:
in the case of Hanuman Dutt Shukla pursuant to order of this Hon?ble Court dated 23.08.2017 in the case of Deepak Kumar 809 24 14. Excess number of candidates who were to be considered and deemed to have been selected pursuant to the orders of the Courts (SI 755 + PC 78) 833 15. Position as obtained from the above situation (3784+833) 4,617 16. Candidates who discontinued training/did not qualify in medical examination/character verification 607 17. Total number of people in service (4617-607) 4,010 24. The matters were thereafter taken-up for final hearing and we heard all the learned counsel. It was submitted by the learned counsel that since number of posts were still lying vacant, appropriate directions be issued to make appointments and the benefit of such direction be confined to those who were before the Court either as Petitioners or Intervenors. On the other hand, it was submitted on behalf of the State Government that, as stated in its various affidavits, all candidates who had secured more than 50% marks were considered at the appropriate stages in the selection process and that no more candidates who had obtained 50% or more marks were now available. It was further submitted that though there were vacancies to the tune of 8260 in the cadre of Sub-Inspector (Civil Police) and 289 in the cadre of Platoon Commander (PAC) but two subsequent selection processes were already undertaken. 25. At the outset, we must deal with the challenges raised to the judgments dated 29.01.2016 and 06.04.2017 passed by the High Court in Writ Petition No.49802 of 2015 and in Special Appeal No.416 of 2016 respectively. In our view, the High Court was right in negating the submission as regards construction of the expression ?such vacancies shall be carried forward for further selection? appearing in Rule 15(j). However, considering the facts that the present selection has seen various interventions including revision in final list on more than one occasion and considering the large number of vacancies of 607 posts where certain candidates either discontinued training or did not qualify in medical examination/character verification, we deem it appropriate, as a one time exception to direct that such 607 posts be made available in the present selection itself. One more reason for such direction is that large number of posts namely more than 8000 posts are currently available for succeeding selections. Similarly, the decision of the High Court in Special Appeal No.416 of 2016, in our view, was correct. Going by the Rules, only 12030 candidates could have been allowed to participate in Group Discussion against the number of 14256. But at this length of time, it would be inappropriate to re-do the exercise and eliminate the excess number from consideration, more particularly when the number of 14256 represents all those who secured 50% or more marks in the written examination and there are still 607 vacancies to be filled up. 26. In the order dated 31.10.2017, this Court had emphasized the adherence to eligibility of 50% while the order dated 30.11.2017 had directed completion of Selection process in the order of merit. Thereafter, the order dated 16.01.2018 categorically stated that three factors namely, merit, reservation and preference should be taken into consideration. We, therefore, cannot accept the submission that the benefit, if any, of the order or directions should be confined to those who are/were before this Court or the High Court alone, in the capacity of either the petitioners or the intervenors ignoring merit. 27. We now proceed to deal with the matters concerning vacancies and the directions that are required to be passed, in the facts and circumstances of the present matters. 28. According to the chart referred to above, though the number of candidates called for group discussion ought to have been thrice the notified vacancies i.e. 12030, the Board had called 14256 candidates. The first list viz. the result notified on 25.06.2015 had named 3784 candidates leaving out 226 unfilled posts as a result of non-availability of candidates in the category of dependents of freedom fighters as stated above. In terms of the decisions of this Court in Hanuman Dutt Shukla (supra) 809 candidates were given benefit, followed by 24 similarly situated candidates. To this number of 833 we will have to add 189 similarly situated candidates as dealt with in the order passed by this Court on 14.08.2018. The decision of this Court in Hanuman Dutt Shukla (supra) was very clear that the revised final list dated 25.06.2015 ought not to be disturbed but benefit must be given to those candidates who were excluded for use of whitener/blade etc. while answering the main examination. This aspect was repeatedly made clear that those vacancies would be in addition and therefore we have no hesitation in stating that the number of 1022 (809 in terms of Hanuman Dutt Shukla (supra), 24 in terms of case of Deepak Kumar and 189 in terms of the order dated 14.08.2018) have to be reckoned in addition to the figure of 4010. Therefore, total number of candidates who could be selected in the selection relatable to the year 2011 in any case ought not to be less than 4010+1022. Status and identity of the candidates who form the group of 1022 candidates is very clear. In this context it is to be noted that the vacancies notified are only approximate and there is nothing wrong if the number increases in the exigencies of service. 29. We now come to the issue as to what should be the approach in respect of vacant posts on two counts. The tabular chart then states that 226 posts remained unfilled as a result of non-availability of candidates in the category of dependents of freedom fighters etc. and 607 posts are lying vacant as a result of candidates who discontinued training or did not qualify in medical examination/character verification. Theoretically, 226 unfilled posts ought to be carried forward for further selection as those posts were earmarked for dependents of freedom fighters.
### Response:
0
### Explanation:
In our view, the High Court was right in negating the submission as regards construction of the expression ?such vacancies shall be carried forward for further selection? appearing in Rule 15(j). However, considering the facts that the present selection has seen various interventions including revision in final list on more than one occasion and considering the large number of vacancies of 607 posts where certain candidates either discontinued training or did not qualify in medical examination/character verification, we deem it appropriate, as a one time exception to direct that such 607 posts be made available in the present selection itself. One more reason for such direction is that large number of posts namely more than 8000 posts are currently available for succeeding selections. Similarly, the decision of the High Court in Special Appeal No.416 of 2016, in our view, was correct. Going by the Rules, only 12030 candidates could have been allowed to participate in Group Discussion against the number of14256. But at this length of time, it would be inappropriate tothe exercise and eliminate the excess number from consideration, more particularly when the number of 14256 represents all those who secured 50% or more marks in the written examination and there are still 607 vacancies to be filled up.In the order dated 31.10.2017, this Court had emphasized the adherence to eligibility of 50% while the order dated 30.11.2017 had directed completion of Selection process in the order of merit. Thereafter, the order dated 16.01.2018 categorically stated that three factors namely, merit, reservation and preference should be taken into consideration. We, therefore, cannot accept the submission that the benefit, if any, of the order or directions should be confined to those who are/were before this Court or the High Court alone, in the capacity of either the petitioners or the intervenors ignoring merit.We now proceed to deal with the matters concerning vacancies and the directions that are required to be passed, in the facts and circumstances of the present matters.According to the chart referred to above, though the number of candidates called for group discussion ought to have been thrice the notified vacancies i.e. 12030, the Board had called 14256 candidates. The first list viz. the result notified on 25.06.2015 had named 3784 candidates leaving out 226 unfilled posts as a result of14.08.2018. The decision of this Court in Hanuman Dutt Shukla (supra) was very clear that the revised final list dated 25.06.2015 ought not to be disturbed but benefit must be given to those candidates who were excluded for use of whitener/blade etc. while answering the main examination. This aspect was repeatedly made clear that those vacancies would be in addition and therefore we have no hesitation in stating that the number of 1022 (809 in terms of Hanuman Dutt Shukla (supra), 24 in terms of case of Deepak Kumar and 189 in terms of the order dated 14.08.2018) have to be reckoned in addition to the figure of 4010. Therefore, total number of candidates who could be selected in the selection relatable to the year 2011 in any case ought not to be less than 4010+1022. Status and identity of the candidates who form the group of 1022 candidates is very clear. In this context it is to be noted that the vacancies notified are only approximate and there is nothing wrong if the number increases in the exigencies of service.e now come to the issue as to what should be the approach in respect of vacant posts on two counts.The tabular chart then states that 226 posts remained unfilled as a result ofof candidates in the category of dependents of freedom fighters etc. and 607 posts are lying vacant as a result of candidates who discontinued training or did not qualify in medical examination/character verification. Theoretically, 226 unfilled posts ought to be carried forward for further selection as those posts were earmarked for dependents of freedom fighters.
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Darshan Lal Nagpal (Dead) By L.Rs Vs. Government of Nct of Delhi & Other
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26, 1968, the Government wrote to one of the promoters of the project, Shri H.L. Somany asking him to complete the ?arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proposed factory?. It was further stated in that communication that the Government was pleased to extend the time for completing the project up to April 30, 1969. Under those circumstances it had become necessary for the State of Haryana to take immediate steps to acquire the required land. It was under those circumstances the Government was constrained to have recourse to Section 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of Section 17(2)(c). It was also denied that the acquisition in question was not made for a public purpose.There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it had become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialisation of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not: see Smt. Somavanti v. State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency. The Government of India was pleased to extend time for the completion of the project up to April 30, 1969. Therefore urgent steps had to be taken for pushing through the project. The fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. The conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive.? There is nothing in the aforesaid judgment which can possibly support the cause of the respondents. The scheme for setting up an industry by a company known as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was finalized on 26.11.1968 and the Notification was issued on 14/17.3.1969. This shows that the time gap between finalization of the scheme and the issue of preliminary Notification was less than four months. Therefore, the judgment in Jage Ram?s case could not have been relied upon for taking the view that pre Notification delay cannot be considered while deciding legality of the State?s action to invoke the urgency provisions. That apart, we have serious reservation whether the Court could have approved the invoking of urgency provisions for the acquisition of land on behalf of a private company ignoring that there is a separate Chapter for such acquisition. 25. In Kasireddy Papaiah v. Government of A.P., AIR 1975 AP 269 to which reference has been made in the judgment of Deepak Pahwa?s case, the learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition of land under Section 4(1) read with Section 17(4). The facts of that case show that Notification under Section 4(1) read with Section 17(4) was issued on 19.5.1970 and was published in the Official Gazette dated 24.9.1970. The declaration under Section 6 was published in Official Gazette dated 25.2.1971. The writ petition was filed on 16.9.1971. The High Court held that the time gap of six months was not fatal to the invoking of the urgency provisions because the land was acquired for providing house sites to the Harijans. There is nothing in that judgment which merits serious consideration by this Court.26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the observations made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy Papaiah?s case and held that the acquisition of land for providing housing accommodation for Harijans did warrant invoking of the urgency provisions and delay by the officials cannot be made a ground to nullify the acquisition. There is no particular discussion in the judgment about the time lag between the proposal for the acquisition of land and the issue of Notification under Section 4(1) read with Section 17(1) and (4). Therefore, that judgment is also of no assistance to the respondents. 27. It is also appropriate to mention that in paragraph 48 of the judgment in Anand Singh v. State of UP (supra), this Court did take cognizance of the conflicting views expressed on the effect of pre-Notification and post-Notification delay on the invoking of urgency provisions and observed that such delay will have material bearing on the question of invocation of urgency power, particularly, when no material is produced by the appropriate Government to justify elimination of the inquiry envisaged under Section 5A.
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1[ds]22. A recapitulation of the facts would show that the idea of establishing 400/220 KV sub-station was mooted prior to August, 2004. For next almost three years, the officers of the DTL and the DDA exchanged letters on the issue of allotment of land. On 28.7.2008 Secretary (Power), Government of NCT of Delhi-cum-CMD, DTL made a suggestion for the acquisition of land by invoking Section 17 of the Act. This became a tool in the hands of the concerned authorities and the Lieutenant Governor mechanically approved the proposal contained in the file without trying to find out as to why the urgency provisions were being invoked after a time gap of five years. If the sub-station was to be established on emergency basis, the authorities of the DTL would not have waited for five years for the invoking of urgency provisions enshrined in the Act. They would have immediately approached the Government of NCT of Delhi and made a request that land be acquired by invoking Section 17 of the Act. However, the fact of the matter is that the concerned officers/functionaries of the DTL, the DDA and the Government of NCT of Delhi leisurely dealt with the matter for over five years. Even after some sign of emergency was indicated in letter dated 9.9.2008 of the Joint Secretary (Power), who made a mention of the Commonwealth Games scheduled to be organised in October, 2010, it took more than one year and two months to the competent authority to issue the preliminary Notification. Therefore, we are unable to approve the view taken by the High Court on the sustainability of the appellants? challenge to the acquisition of their land.23. Before concluding we deem it appropriate to notice the judgments relied upon by the learned Additional Solicitor General. A cursory reading of the judgment in Deepak Pahwa v. Lt. Governor of Delhi (supra) (3-Judge Bench) gives an impression that the proposition contained therein supports the argument of Shri Malhotra, that pre-Notification delay is not relevant for deciding legality of the exercise of the State?s power of eminent domain and invoking of the urgency provisions contained in the Act but careful reading of the judgment along with the precedents referred to in paragraph 8 makes it clear that nothing contained therein can be relied upon for overlooking the time gap of five years between the initiation of proposal for establishment of the sub-station and the issue of Notification under Section 4(1) read with Section 17 (1) and (4) of the Act. That case involved challenge to the acquisition of land for construction of ‘New Transmitting Station for the Delhi Airport?. The High Court dismissed the writ petition in limine. The special leave petition was also dismissed at the threshold. While dealing with the argument that there was no justification to invoke Section 17(4) of the Act and to dispense with the inquiry under Section 5A because eight years time was spent in inter-departmental discussions, this Courtother ground of attack is that if regard is had to the considerable length of time spent on inter-departmental discussion before the Notification under Section 4(1) was published, it would be apparent that there was no justification for invoking the urgency clause under Section 17(4) and dispensing with the enquiry under Section 5-A. We are afraid, we cannot agree with this contention. Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of inquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-Notification delay would render the invocation of the urgency provisions void. We however wish to say nothing about post-Notification delay. In Jage Ram v. State of Haryana,(1971) 1 SCC 671 , this Court pointed out the fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. In Kasireddy Papaiah v. Government of Andhra Pradesh, AIR 1975 AP 269 it was held, ?… delay on the part of tardy officials to take the further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the Notification and to hold that there was never any urgency?. In the result both the submissions of the learned Counsel for the petitioners are rejected and the special leave petitions areis ours)In making the aforesaid observation, the Court appears to have been unduly influenced by what was perceived at the relevant time as pulling of strings in the power corridors by the interested persons which resulted in frustration of the public oriented projects. The general observations made in Deepak Pahwa?s case cannot supply basis for approving the impugned order and the Notifications challenged by the appellants because it is neither the pleaded case of the respondents nor it has been suggested that the delay was caused due to the representation made by the appellants or that they brought extraneous pressure to prevent the acquisition of their land.24. We may now notice the two decisions referred to in paragraph 8 of the judgment in Deepak Pahwa?s case. In Jage Ram v. State of Haryana, (1971) 1 SCC 671 , the acquisition of land for setting up a factory for the manufacture of China-ware, Porcelain-ware including wall glazed tiles, etc., at the instance of a private industrialist by invoking Section 17(2)(c) of the Act (as amended by Haryana Legislature) was challenged. The State Government had issued Notification dated 14/17.3.1969 under Section 4 of the Act. Simultaneously, a direction was given for taking action under Section 17(2)(c) and it was declared that the provisions of Section 5A shall not apply. On 8.4.1969 the appellants filed writ petition, which was dismissed by the High Court. This Court negatived the challenge to the invoking of the urgency provisions by making the followingallegations in the writ petition include the assertion that there was no urgency in the matter of acquiring the land in question and therefore there was no justification for having recourse to Section 17 and thus deprive the appellants of the benefit of Section 5-A of the Act. It was further alleged therein that the acquisition in question was made for the benefit of a company and hence proceedings should have been taken under Sections 38 to 44(B) of the Act and that there was no public purpose involved in the case. It was further pleaded that the land acquired was not waste and arable land and that Section 2(c) of the Act did not confer power on the Government to dispense with the proceedings under Section 5-A. In the counter-affidavit filed by the Deputy Director of Industries (Administration), Government of Haryana on behalf of the State of Haryana, the above allegations were all denied. Therein it is stated that at the instance of the State of Haryana, Government of India had issued a letter of intent to a company for setting up a factory for the manufacture of Glazed Tiles, etc. in village Kasser. That project was to be started with the collaboration of a foreign company known as Pilkington Tiles Ltd. The scheme for setting up the project had been finalised and approved by the concerned authorities. On November 26, 1968, the Government wrote to one of the promoters of the project, Shri H.L. Somany asking him to complete the ?arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proposed factory?. It was further stated in that communication that the Government was pleased to extend the time for completing the project up to April 30, 1969. Under those circumstances it had become necessary for the State of Haryana to take immediate steps to acquire the required land. It was under those circumstances the Government was constrained to have recourse to Section 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of Section 17(2)(c). It was also denied that the acquisition in question was not made for a public purpose.There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it had become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialisation of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not: see Smt. Somavanti v. State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency. The Government of India was pleased to extend time for the completion of the project up to April 30, 1969. Therefore urgent steps had to be taken for pushing through the project. The fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. The conclusion of the Government in a given case that there was urgency is entitled to weight, if notis nothing in the aforesaid judgment which can possibly support the cause of the respondents. The scheme for setting up an industry by a company known as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was finalized on 26.11.1968 and the Notification was issued on 14/17.3.1969. This shows that the time gap between finalization of the scheme and the issue of preliminary Notification was less than four months. Therefore, the judgment in Jage Ram?s case could not have been relied upon for taking the view that pre Notification delay cannot be considered while deciding legality of the State?s action to invoke the urgency provisions. That apart, we have serious reservation whether the Court could have approved the invoking of urgency provisions for the acquisition of land on behalf of a private company ignoring that there is a separate Chapter for such acquisition.It is also appropriate to mention that in paragraph 48 of the judgment in Anand Singh v. State of UP (supra), this Court did take cognizance of the conflicting views expressed on the effect of pre-Notification and post-Notification delay on the invoking of urgency provisions and observed that such delay will have material bearing on the question of invocation of urgency power, particularly, when no material is produced by the appropriate Government to justify elimination of the inquiry envisaged under Section 5A.What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law — Article 300A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity ofDivision Bench of the High Court accepted the explanation given by the respondents by observing that sub-station in East Delhi is needed to evacuate and utilize the power generated from 1500 MW gas based plant at Bawana. While doing so the Bench completely overlooked that there was long time gap of more than five years between initiation of the proposal for establishment of the sub-station and the issue of Notification under Section 4 (1) read with Section 17(1) and (4) of the Act. The High Court also failed to notice that the Government of NCT of Delhi had not produced any material to justify its decision to dispense with the application of Section 5A of the Act. The documents produced by the parties including the notings recorded in file bearing No. F.S(11)/08/LandB/LA and the approval accorded by the Lieutenant Governor do not contain anything from which it can be inferred that a conscious decision was taken to dispense with the application of Section 5A which represents two facets of the rule of hearing that is the right of the land owner to file objection against the proposed acquisition of land and of being heard in the inquiry required to be conducted by the Collector.It is also apposite to mention that no tangible evidence was produced by the respondents before the Court to show that the task of establishing the sub-station at Mandoli was required to be accomplished within a fixed schedule and the urgency was such that even few months time, which may have been consumed in the filing of objections by the land owners and other interested persons under Section 5A(1) and holding of inquiry by the Collector under Section 5A(2), would have frustrated the project. It seems that the Bench of the High Court was unduly influenced by the fact that consumption of power in Delhi was increasing everyday and the DTL was making an effort to ensure supply of power to different areas and for that purpose establishment of sub-station at village Mandoli was absolutely imperative. In our view, the High Court was not justified in rejecting the appellants? challenge to the invoking of urgency provisions on the premise that the land was required for implementation of a project which would benefit large Section of the society. It needs no emphasis that majority of the projects undertaken by the State and its agencies/instrumentalities, the implementation of which requires public money, are meant to benefit the people at large or substantially large segment of the society. If what the High Court has observed is treated as a correct statement of law, then in all such cases the acquiring authority will be justified in invoking Section 17 of the Act and dispense with the inquiry contemplated under Section 5A, which would necessarily result in depriving the owner of his property without any opportunity to raise legitimate objection. However, as has been repeatedly held by this Court, the invoking of the urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants? land and land belonging to others was sought to be acquired was a public purpose but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard. It appears that attention of the High Court was not drawn to the following observations made in State of Punjab v. Gurdial Singhis fundamental that compulsory taking of a man?s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an inquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.In Kasireddy Papaiah v. Government of A.P., AIR 1975 AP 269 to which reference has been made in the judgment of Deepak Pahwa?s case, the learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition of land under Section 4(1) read with Section 17(4). The facts of that case show that Notification under Section 4(1) read with Section 17(4) was issued on 19.5.1970 and was published in the Official Gazette dated 24.9.1970. The declaration under Section 6 was published in Official Gazette dated 25.2.1971. The writ petition was filed on 16.9.1971. The High Court held that the time gap of six months was not fatal to the invoking of the urgency provisions because the land was acquired for providing house sites to the Harijans. There is nothing in that judgment which merits serious consideration by this Court.26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the observations made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy Papaiah?s case and held that the acquisition of land for providing housing accommodation for Harijans did warrant invoking of the urgency provisions and delay by the officials cannot be made a ground to nullify the acquisition. There is no particular discussion in the judgment about the time lag between the proposal for the acquisition of land and the issue of Notification under Section 4(1) read with Section 17(1) and (4). Therefore, that judgment is also of no assistance to the respondents.
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### 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:
26, 1968, the Government wrote to one of the promoters of the project, Shri H.L. Somany asking him to complete the ?arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proposed factory?. It was further stated in that communication that the Government was pleased to extend the time for completing the project up to April 30, 1969. Under those circumstances it had become necessary for the State of Haryana to take immediate steps to acquire the required land. It was under those circumstances the Government was constrained to have recourse to Section 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of Section 17(2)(c). It was also denied that the acquisition in question was not made for a public purpose.There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it had become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialisation of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not: see Smt. Somavanti v. State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency. The Government of India was pleased to extend time for the completion of the project up to April 30, 1969. Therefore urgent steps had to be taken for pushing through the project. The fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. The conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive.? There is nothing in the aforesaid judgment which can possibly support the cause of the respondents. The scheme for setting up an industry by a company known as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was finalized on 26.11.1968 and the Notification was issued on 14/17.3.1969. This shows that the time gap between finalization of the scheme and the issue of preliminary Notification was less than four months. Therefore, the judgment in Jage Ram?s case could not have been relied upon for taking the view that pre Notification delay cannot be considered while deciding legality of the State?s action to invoke the urgency provisions. That apart, we have serious reservation whether the Court could have approved the invoking of urgency provisions for the acquisition of land on behalf of a private company ignoring that there is a separate Chapter for such acquisition. 25. In Kasireddy Papaiah v. Government of A.P., AIR 1975 AP 269 to which reference has been made in the judgment of Deepak Pahwa?s case, the learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition of land under Section 4(1) read with Section 17(4). The facts of that case show that Notification under Section 4(1) read with Section 17(4) was issued on 19.5.1970 and was published in the Official Gazette dated 24.9.1970. The declaration under Section 6 was published in Official Gazette dated 25.2.1971. The writ petition was filed on 16.9.1971. The High Court held that the time gap of six months was not fatal to the invoking of the urgency provisions because the land was acquired for providing house sites to the Harijans. There is nothing in that judgment which merits serious consideration by this Court.26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the observations made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy Papaiah?s case and held that the acquisition of land for providing housing accommodation for Harijans did warrant invoking of the urgency provisions and delay by the officials cannot be made a ground to nullify the acquisition. There is no particular discussion in the judgment about the time lag between the proposal for the acquisition of land and the issue of Notification under Section 4(1) read with Section 17(1) and (4). Therefore, that judgment is also of no assistance to the respondents. 27. It is also appropriate to mention that in paragraph 48 of the judgment in Anand Singh v. State of UP (supra), this Court did take cognizance of the conflicting views expressed on the effect of pre-Notification and post-Notification delay on the invoking of urgency provisions and observed that such delay will have material bearing on the question of invocation of urgency power, particularly, when no material is produced by the appropriate Government to justify elimination of the inquiry envisaged under Section 5A.
### Response:
1
### Explanation:
High Court accepted the explanation given by the respondents by observing that sub-station in East Delhi is needed to evacuate and utilize the power generated from 1500 MW gas based plant at Bawana. While doing so the Bench completely overlooked that there was long time gap of more than five years between initiation of the proposal for establishment of the sub-station and the issue of Notification under Section 4 (1) read with Section 17(1) and (4) of the Act. The High Court also failed to notice that the Government of NCT of Delhi had not produced any material to justify its decision to dispense with the application of Section 5A of the Act. The documents produced by the parties including the notings recorded in file bearing No. F.S(11)/08/LandB/LA and the approval accorded by the Lieutenant Governor do not contain anything from which it can be inferred that a conscious decision was taken to dispense with the application of Section 5A which represents two facets of the rule of hearing that is the right of the land owner to file objection against the proposed acquisition of land and of being heard in the inquiry required to be conducted by the Collector.It is also apposite to mention that no tangible evidence was produced by the respondents before the Court to show that the task of establishing the sub-station at Mandoli was required to be accomplished within a fixed schedule and the urgency was such that even few months time, which may have been consumed in the filing of objections by the land owners and other interested persons under Section 5A(1) and holding of inquiry by the Collector under Section 5A(2), would have frustrated the project. It seems that the Bench of the High Court was unduly influenced by the fact that consumption of power in Delhi was increasing everyday and the DTL was making an effort to ensure supply of power to different areas and for that purpose establishment of sub-station at village Mandoli was absolutely imperative. In our view, the High Court was not justified in rejecting the appellants? challenge to the invoking of urgency provisions on the premise that the land was required for implementation of a project which would benefit large Section of the society. It needs no emphasis that majority of the projects undertaken by the State and its agencies/instrumentalities, the implementation of which requires public money, are meant to benefit the people at large or substantially large segment of the society. If what the High Court has observed is treated as a correct statement of law, then in all such cases the acquiring authority will be justified in invoking Section 17 of the Act and dispense with the inquiry contemplated under Section 5A, which would necessarily result in depriving the owner of his property without any opportunity to raise legitimate objection. However, as has been repeatedly held by this Court, the invoking of the urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants? land and land belonging to others was sought to be acquired was a public purpose but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard. It appears that attention of the High Court was not drawn to the following observations made in State of Punjab v. Gurdial Singhis fundamental that compulsory taking of a man?s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an inquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.In Kasireddy Papaiah v. Government of A.P., AIR 1975 AP 269 to which reference has been made in the judgment of Deepak Pahwa?s case, the learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition of land under Section 4(1) read with Section 17(4). The facts of that case show that Notification under Section 4(1) read with Section 17(4) was issued on 19.5.1970 and was published in the Official Gazette dated 24.9.1970. The declaration under Section 6 was published in Official Gazette dated 25.2.1971. The writ petition was filed on 16.9.1971. The High Court held that the time gap of six months was not fatal to the invoking of the urgency provisions because the land was acquired for providing house sites to the Harijans. There is nothing in that judgment which merits serious consideration by this Court.26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the observations made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy Papaiah?s case and held that the acquisition of land for providing housing accommodation for Harijans did warrant invoking of the urgency provisions and delay by the officials cannot be made a ground to nullify the acquisition. There is no particular discussion in the judgment about the time lag between the proposal for the acquisition of land and the issue of Notification under Section 4(1) read with Section 17(1) and (4). Therefore, that judgment is also of no assistance to the respondents.
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The Provincial Government Of Madras Vs. J. S. Basappa
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least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if S. 18-A was implicit in it and that S. 18-A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdiction of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In our judgment the suits were competent.11. The last question is whether the assessment as a whole must fail or only in respect of the part which was outside the jurisdiction of the sales-tax authorities. We have already reproduced the four categories into which all the transactions of sale were classified. The High Court and the Court below found that categories 1 and 4 represented transaction of sale which could not be taxed at all by the authorities as those transactions took place outside the State. It may be mentioned that the Sales-tax Act did not then contain any provision which established a nexus between the sales and the Province. That provision came later. The High Court relying upon Ram Narains case, (1955) 2 SCR 483 : ((S) AIR 1955 SC 765 ) held that the assessments as a whole must fail. In Ram Narains case, (1955) 2 SCR 483 : (S) AIR 1955 SC 765 ) a portion of the assessment was invalid under Art. 286 of the Constitution and the question was whether the total assessment must fail. This Court observed:"The necessity for doing so is, however obviated by reason of the fact that the assessment is one composite whole relating to the pre-Constitution as well as the post-Constitution periods and is invalid in toto. There is authority for the proposition that when 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.This Court cited with approval a passage from Bennett and White (Calgary) Ltd. v. Municipal District of Sugar City No. 5, 1951 AC 786 at p. 816 where the Judicial Committee observed:"When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a court can sever the items and cut out one or more along with the sum attributed to it, while affirming the residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable when one component (not dismissible as de minimis) as on any view not assessable and wrongly included, it would seem clear that such a procedure is barred and the assessment is bad wholly. That matter is covered by authority. In Montreal Light Heat and Power Consolidated v. City of Westmount, 1926 SCR (Can.) 515 the court (see especially per Anglin, C. J.) in these conditions held that an assessment which was bad in part was infected throughout and treated it as invalid. Here their Lordships are of opinion, by parity of reasoning, that the assessment was invalid in toto.It is urged by Mr. Sastri that the tax here is at the uniform rate of 1% and as all the returns and documents necessary to separate the bad part from the good are available, there is no need to cancel the whole assessment.He contends that these cases are rather governed by the other rule that where the assessment is for separate sums, only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which though parts of the whole assessment, stand completely separate. There the court can declare the "separate dissected and earmarked" Item illegal and excise them from the levy. In doing so, the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good part from the bad, proceedings in the nature of assessment have to be undertaken, the civil court lacks the jurisdiction. Here, the amount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the Sales-tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canda referred to by the Judicial Committee afford a parallel to a case of assessment of a composite turnover such as we have here, just as in the Canadian case it was not possible to separate the valuation of moveable properties from that of immovable properties, embraced in a gross valuation roll, so also here, it is not possible to separate from the composite turnover transactions which are validly taxed, from those which are not for that must pertain to the domain of tax officers and the courts have no power within that domain. In our opinion, the High Court was right in declaring the total assessment to be effected by the portion which was illegal and void.
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0[ds]10. Applying these tests, it is clear that without a provision like S. 18-A in the Act, the jurisdiction of the civil court would not be taken away at least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if S. 18-A was implicit in it and that S. 18-A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdiction of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In our judgment the suits werecontends that these cases are rather governed by the other rule that where the assessment is for separate sums, only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which though parts of the whole assessment, stand completely separate. There the court can declare the "separate dissected and earmarked" Item illegal and excise them from the levy. In doing so, the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good part from the bad, proceedings in the nature of assessment have to be undertaken, the civil court lacks the jurisdiction. Here, the amount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the Sales-tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canda referred to by the Judicial Committee afford a parallel to a case of assessment of a composite turnover such as we have here, just as in the Canadian case it was not possible to separate the valuation of moveable properties from that of immovable properties, embraced in a gross valuation roll, so also here, it is not possible to separate from the composite turnover transactions which are validly taxed, from those which are not for that must pertain to the domain of tax officers and the courts have no power within that domain. In our opinion, the High Court was right in declaring the total assessment to be effected by the portion which was illegal and void.
| 0 | 3,807 | 566 |
### 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:
least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if S. 18-A was implicit in it and that S. 18-A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdiction of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In our judgment the suits were competent.11. The last question is whether the assessment as a whole must fail or only in respect of the part which was outside the jurisdiction of the sales-tax authorities. We have already reproduced the four categories into which all the transactions of sale were classified. The High Court and the Court below found that categories 1 and 4 represented transaction of sale which could not be taxed at all by the authorities as those transactions took place outside the State. It may be mentioned that the Sales-tax Act did not then contain any provision which established a nexus between the sales and the Province. That provision came later. The High Court relying upon Ram Narains case, (1955) 2 SCR 483 : ((S) AIR 1955 SC 765 ) held that the assessments as a whole must fail. In Ram Narains case, (1955) 2 SCR 483 : (S) AIR 1955 SC 765 ) a portion of the assessment was invalid under Art. 286 of the Constitution and the question was whether the total assessment must fail. This Court observed:"The necessity for doing so is, however obviated by reason of the fact that the assessment is one composite whole relating to the pre-Constitution as well as the post-Constitution periods and is invalid in toto. There is authority for the proposition that when 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.This Court cited with approval a passage from Bennett and White (Calgary) Ltd. v. Municipal District of Sugar City No. 5, 1951 AC 786 at p. 816 where the Judicial Committee observed:"When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a court can sever the items and cut out one or more along with the sum attributed to it, while affirming the residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable when one component (not dismissible as de minimis) as on any view not assessable and wrongly included, it would seem clear that such a procedure is barred and the assessment is bad wholly. That matter is covered by authority. In Montreal Light Heat and Power Consolidated v. City of Westmount, 1926 SCR (Can.) 515 the court (see especially per Anglin, C. J.) in these conditions held that an assessment which was bad in part was infected throughout and treated it as invalid. Here their Lordships are of opinion, by parity of reasoning, that the assessment was invalid in toto.It is urged by Mr. Sastri that the tax here is at the uniform rate of 1% and as all the returns and documents necessary to separate the bad part from the good are available, there is no need to cancel the whole assessment.He contends that these cases are rather governed by the other rule that where the assessment is for separate sums, only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which though parts of the whole assessment, stand completely separate. There the court can declare the "separate dissected and earmarked" Item illegal and excise them from the levy. In doing so, the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good part from the bad, proceedings in the nature of assessment have to be undertaken, the civil court lacks the jurisdiction. Here, the amount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the Sales-tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canda referred to by the Judicial Committee afford a parallel to a case of assessment of a composite turnover such as we have here, just as in the Canadian case it was not possible to separate the valuation of moveable properties from that of immovable properties, embraced in a gross valuation roll, so also here, it is not possible to separate from the composite turnover transactions which are validly taxed, from those which are not for that must pertain to the domain of tax officers and the courts have no power within that domain. In our opinion, the High Court was right in declaring the total assessment to be effected by the portion which was illegal and void.
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### Explanation:
10. Applying these tests, it is clear that without a provision like S. 18-A in the Act, the jurisdiction of the civil court would not be taken away at least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if S. 18-A was implicit in it and that S. 18-A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdiction of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In our judgment the suits werecontends that these cases are rather governed by the other rule that where the assessment is for separate sums, only that portion need be declared illegal which is void. It is necessary to explain the distinction between the two classes of cases and how they are to be distinguished. A difference in approach arises only in those cases where the assessment of many matters results in amounts of tax which though parts of the whole assessment, stand completely separate. There the court can declare the "separate dissected and earmarked" Item illegal and excise them from the levy. In doing so, the court does not arrogate to itself the functions of the taxing authorities; but where the tax is a composite one and to separate the good part from the bad, proceedings in the nature of assessment have to be undertaken, the civil court lacks the jurisdiction. Here, the amount of tax is a percentage of the turnover and the turnover is a mixed one and it is thus not merely a question of cutting off some items which are separate but of entering upon the function of assessment which only the authorities under the Sales-tax Act can undertake. Cases of assessment based upon gross valuation such as the case from Canda referred to by the Judicial Committee afford a parallel to a case of assessment of a composite turnover such as we have here, just as in the Canadian case it was not possible to separate the valuation of moveable properties from that of immovable properties, embraced in a gross valuation roll, so also here, it is not possible to separate from the composite turnover transactions which are validly taxed, from those which are not for that must pertain to the domain of tax officers and the courts have no power within that domain. In our opinion, the High Court was right in declaring the total assessment to be effected by the portion which was illegal and void.
|
Hdfc Bank Limited Vs. Assistant Commissioner of Income Tax & Others
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covered under section 92BA(i) of the I.T. Act.TRANSACTION-3PAYMENT OF INTEREST OF RS. 4.41 CRORES BY THE PETITIONER TO HDB WELFARE TRUST.40. As far as this transaction is concerned, it is the case of the Revenue that the Petitioner has deposits of Rs.45.12 Crores from the HDB Employee Welfare Trust and has paid interest of Rs.4.41 Crores. According to the Revenue, the Petitioner has a substantial interest in terms of explanation (b) to section 40A(2)(b) of the Act. Explanation (b) stipulates that in any other case [i.e. other than a person mention in explanation (a)], a person is said to have a substantial interest if such person is at any time during the previous year, beneficially entitled to not less than 20% of the profits of such business or profession.41. We fail to see how the Revenue can contend that the transaction of payment of interest to HBD Welfare Trust and which Trust has been set up for the benefit of its employees, would fall within Explanation (b) to section 40A (2)(b) of the I. T. Act. It is not even the case of the Revenue that the Petitioner is entitled to at least 20% of the profits of the said Trust. The Trust has been set up exclusively for the welfare of its employees and there is no question of the Petitioner being entitled to 20% of the profits of such Trust. This being the case, we find that this transaction also clearly would not fall within section 40A(2)(b) read with explanation (b) thereof to be a SDT as understood and covered by section 92BA(i) of the I. T. Act.42. Before parting, it would only be fair to deal with the judgments relied upon by Mr. Chhotaray. The first decision was of the Karnataka High Court and the other was of the Supreme Court. On carefully going through the decision of the Karnataka High Court in the case of Commissioner of Income Tax Vs. Amco Power Systems Ltd. (supra), we find that the reliance thereon by Mr Chhotaray is wholly misplaced. What the Karnataka High Court was considering in the facts of that case were the provisions of section 79 of the I.T. Act and which are materially different from section 40A(2)(b) which is being considered by us in the present Writ Petition. In fact when one peruses section 79 of the I.T.Act, it is clear that the same deals with carry forward and set off of losses in the case of certain companies. It is on the wording of section 79 of the I.T. Act, that the Karnataka High Court has given a finding that since ABL was having complete control over APIL and even though the shareholding of ABL was reduced to 6% in the year in question, yet by virtue of being the holding company, owning 100 % shares of APIL, the voting power of ABL could not be said to have been reduced to less than 51%. It came to this finding because ABL, together with APIL were having voting power of 51%. This finding of the Karnataka High Court was given because the wordings of section 79 of the I.T. Act are materially different from the wordings of Section 40A(2)(b). We, therefore, find that the reliance placed by Mr Chhotaray on this decision is wholly misconceived.43. Similarly, we find that the reliance placed by Mr Chhotaray on the decision of the Supreme Court in the case of CIT v/s Podar Cement Pvt. Ltd. (supra) is wholly misplaced. In this case, the Supreme Court was called upon to decide whether in law the income derived by the assessee company by letting out flats of a building is taxable under the head Income from other Sources under section 56 of the Act or whether the same was to be taxed as Income from House Property under section 22 of the Act. On carefully going through this judgment, we do not see how this decision in any way supports the contention of Mr Chhotaray. Section 22 of the Act deals with Income from House Property and stipulates that the annual value of property of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purpose of any business of profession carried on by him the profits of which are chargeable to income tax, shall be chargeable to income tax under the head Income from House Property. The owner of house property has also been defined in section 27 and clause (iii) thereof inter alia stipulates that a member of a co-operative society to whom a building or part thereof is allotted or leased under a house building scheme of the society, shall be deemed to be the owner of that building or part thereof. Section 27(iii)(a) and (iii)(b) also set out who shall be deemed to be the owner in certain circumstances. It is whilst interpreting these provisions, the Supreme Court was deciding as to who would be the owner as contemplated under section 22 of the Act. We fail to see that this judgment can be of any assistance to the Revenue in the facts and circumstances of the present case. The Supreme Court was considering completely different sections of Income Tax Act and whose wordings are materially different from the wordings of section 40A(2)(b) of the Act. We therefore find that the reliance placed by Mr Chhotaray on this decision is also wholly misplaced.44. In view of the foregoing discussion, we find that none of the three transactions that form the subject matter of this Petition fall within the meaning of a SDT as required under section 92BA(i) of the I.T. Act. This being the case, we find that Respondent No.1 was clearly in error in concluding that these transactions were SDTs, and therefore required to be disclosed by the Petitioner by filing Form 3CEB. He therefore could not have referred these transactions to Respondent No.2 for determining the ALP.
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1[ds]We find that the entire controversy in the present Writ Petition basically revolves around the interpretation of section 92BA(i) read with section 40A(2)(b) of the I. T. Act. As mentioned earlier, it is the case of the Revenue that the three transactions mentioned hereinabove fall within the meaning of a Specified Domestic Transaction (SDT), as set out in section 92BA(i) of the I. T. Act.On a plain reading of the aforesaid provisions, we are unable to agree with the submissions of the Revenue. What explanation (a) to section 40A(2)(b) clearly stipulates is that a person shall be deemed to have a substantial interest in a business or profession in a case where the business or profession is carried on by a company, such person is, at any time during the previous year, the beneficial owner of shares carrying not less than 20% of the voting power. In other words, explanation (a) when broken down, requires two conditions that need to be fulfilled. The first condition is that, that the person should be the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits); and second that these shares (of which the person is the beneficial owner) are carrying not less than 20% of the voting power. In the facts of the present case, admittedly HDFC Ltd., on its own, is not the beneficial owner of shares carrying at least 20% of the voting power as required under explanation (a) to section 40A (2) (b) of the I. T. Act. The shareholding that HDFC Ltd. has in the Petitioner is only 16.39%.28. We cannot, and the law does not permit us, to hold that HDFC Ltd. is the beneficial owner of 22.64% of the shares in the Petitioner by clubbing the share holding of HDFC Investments Ltd. with the shareholding of HDFC Ltd. If we were to do this, we would be effectively holding that HDFC Ltd., being a shareholder of HDFC Investments Ltd., is the beneficial owner of the shares which HDFC Investments Ltd. holds in the Petitioner. This, in law, is clearly impermissible because a shareholder of a company can never have any beneficial interest in the assets (movable or immovable) of that company. In the present case, if we were to accept the contention of the Revenue, it would mean that HDFC Ltd. is the beneficial owner of the shares which HDFC Investments Ltd. holds in the Petitioner. This would be contrary to all canons of Company Law. It is well settled that a shareholder of a company can never be construed either the legal or beneficial owner of the properties and assets of the company in which it holds the shares. This being the position in law, we find that the Revenue is incorrect in trying to club the shareholding of HDFC Investments Ltd. in the Petitioner along with the shareholding of HDFC Ltd. in the Petitioner, to cross the threshold of 20% as required in explanation (a) to section 40A(2)(b). We are supported in the view that we take by a decision of the Supreme Court in the case of Bacha F. Guzdar Vs. Commissioner of Income Tax [(1955) 27 ITRthese circumstances, therefore, the shareholding of HDFC Ltd. and HDFC Investments Ltd. cannot be clubbed together to cross the threshold of 20% as required under explanation (a). This being the position, we have no hesitation in holding that the HDFC Ltd. does not have a substantial interest in the Petitioner, and therefore, is not a person as contemplated under section 40A(2)(b)(iv) for the present transaction to fall within the meaning of a SDT as set out in section 92BA (i) of the I. T. Act.Act.32. There is yet another reason that we find that the present transaction (purchase of loans by the Petitioner from the HDFC Ltd.) could never be termed as a SDT. Section 92BA (i) contemplates a transaction in which any expenditure is incurred in respect of which payment has been made or is to be made to a person referred to in clause (b) of sub-section 2 of section 40A of the I. T. Act. What we find in the facts of the present case is that the Petitioner had purchased the loans of HDFC Limited. This was a purchase of an asset. As correctly submitted by Mr. Mistri, when the purchaser pays the price for acquiring an asset it is referred to as a consideration for purchase of that asset and not an ‘expenditure for that asset. Acquisition of an asset, therefore, cannot be said to be in the nature of an expenditure so as to come within the ambit of section 92BA (i) of the Act. It is true that consideration has to be paid for purchasing an asset but that would not mean that it is an ‘expenditure. Mr. Mistri is correct when he submits that an asset would be reflected in the balance-sheet of the company whereas an expenditure would be reflected in the Profit and Loss account. In fact, in the facts of the present case, the loans purchased by the Petitioner from HDFC Ltd. were reflected in the balance-sheet and not in the Profit and Loss account. This being the case, we find that this is not an expenditure at all as contemplated under section 92BA(i), and therefore, the money expended for purchasing these loans can never be termed as an ‘expenditure incurred by the Petitioner. It would, therefore, not fall within the meaning of a SDT as understood under section 92BA(i) of the Act.For all the aforesaid reasons, we therefore have no hesitation in holding that this transaction of purchase of loans by the Petitioner from HDFC Ltd. would not fall within the meaning of a SDT. This being the case, there was no question of Respondent No.1 treating it so and thereafter referring the same to the TPO under section 92CA(1) for determining the ALP.As far as this transaction is concerned, we find that the Petitioner holds 29% of the shares in ADFC Ltd. In turn, ADFC Ltd. holds 98.4% of the shares in HBL Global. It is not in dispute that the Petitioner holds no shares of HBL Global. Merely because the Petitioner holds 29% of the shares of ADFC Ltd., which in turn holds 98.4% shares in HBL Global, the Petitioner cannot be regarded as having a substantial interest in HBL Global. For us to hold that the Petitioner would have a substantial interest in HBL Global, we would have to hold that the Petitioner, because it holds 29% of the shareholding in ADFC Ltd., is the beneficial owner of 98.4% of the shares of HBL Global which are held by ADFC Ltd. This in law, and as discussed in detail earlier, we cannot do because the Petitioner, being a shareholder of ADFC Ltd., does not have any interest (beneficial or otherwise) in the properties/assets of ADFC Ltd. (which in this case would be the shareholding that ADFC Ltd. has in HBL Global). This being the case, we find that even this transaction is not entered into with a person as mentioned in section 40A(2)(b)(vi)(B) of the I. T. Act. Here also, we find merit in the submission of Mr. Mistri that if the plea of the Revenue is taken to its logical conclusion, then, it would mean that it is not the Petitioner which is the beneficial owner of the shares of HBL Global but it would be the shareholders of the Petitioner who are the beneficial owner of the shares of HBL Global. This could never have been the intention of theare unable to agree with the submissions of Mr. Chhotaray. There is no question in the facts of the present case to refer to or consider any indirect shareholding. As mentioned earlier, on a plain reading of explanation (a) to section 40A(2)(b), for there to be a substantial interest, the person has to be the beneficial owner of shares holding not less than 20% of the voting power. In this transaction, the Petitioner can never be said to be beneficial owner of the shares in HBL Global for the simple reason that it holds absolutely no shares in HBD Global. It holds shares in a company called ADFC Ltd., which in turn holds 98.4% shares in HBL Global. This would not mean that either directly or indirectly the Petitioner is the beneficial owner of the shares of HBD Global. We, therefore, find no merit in this contention.For all the aforesaid reasons, we are unable to accept the submission of Mr. Chhotaray that the present transaction (namely the payment made by the Petitioner to HBL Global for services rendered) would fall within the meaning of a SDT as understood and covered under section 92BA(i) of the I.T. Act.We fail to see how the Revenue can contend that the transaction of payment of interest to HBD Welfare Trust and which Trust has been set up for the benefit of its employees, would fall within Explanation (b) to section 40A (2)(b) of the I. T. Act. It is not even the case of the Revenue that the Petitioner is entitled to at least 20% of the profits of the said Trust. The Trust has been set up exclusively for the welfare of its employees and there is no question of the Petitioner being entitled to 20% of the profits of such Trust. This being the case, we find that this transaction also clearly would not fall within section 40A(2)(b) read with explanation (b) thereof to be a SDT as understood and covered by section 92BA(i) of the I. T. Act.42. Before parting, it would only be fair to deal with the judgments relied upon by Mr. Chhotaray. The first decision was of the Karnataka High Court and the other was of the Supreme Court. On carefully going through the decision of the Karnataka High Court in the case of Commissioner of Income Tax Vs. Amco Power Systems Ltd. (supra), we find that the reliance thereon by Mr Chhotaray is wholly misplaced. What the Karnataka High Court was considering in the facts of that case were the provisions of section 79 of the I.T. Act and which are materially different from section 40A(2)(b) which is being considered by us in the present Writ Petition. In fact when one peruses section 79 of the I.T.Act, it is clear that the same deals with carry forward and set off of losses in the case of certain companies. It is on the wording of section 79 of the I.T. Act, that the Karnataka High Court has given a finding that since ABL was having complete control over APIL and even though the shareholding of ABL was reduced to 6% in the year in question, yet by virtue of being the holding company, owning 100 % shares of APIL, the voting power of ABL could not be said to have been reduced to less than 51%. It came to this finding because ABL, together with APIL were having voting power of 51%. This finding of the Karnataka High Court was given because the wordings of section 79 of the I.T. Act are materially different from the wordings of Section 40A(2)(b). We, therefore, find that the reliance placed by Mr Chhotaray on this decision is wholly misconceived.43. Similarly, we find that the reliance placed by Mr Chhotaray on the decision of the Supreme Court in the case of CIT v/s Podar Cement Pvt. Ltd. (supra) is wholly misplaced. In this case, the Supreme Court was called upon to decide whether in law the income derived by the assessee company by letting out flats of a building is taxable under the head Income from other Sources under section 56 of the Act or whether the same was to be taxed as Income from House Property under section 22 of the Act. On carefully going through this judgment, we do not see how this decision in any way supports the contention of Mr Chhotaray. Section 22 of the Act deals with Income from House Property and stipulates that the annual value of property of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purpose of any business of profession carried on by him the profits of which are chargeable to income tax, shall be chargeable to income tax under the head Income from House Property. The owner of house property has also been defined in section 27 and clause (iii) thereof inter alia stipulates that a member of a co-operative society to whom a building or part thereof is allotted or leased under a house building scheme of the society, shall be deemed to be the owner of that building or part thereof. Section 27(iii)(a) and (iii)(b) also set out who shall be deemed to be the owner in certain circumstances. It is whilst interpreting these provisions, the Supreme Court was deciding as to who would be the owner as contemplated under section 22 of the Act. We fail to see that this judgment can be of any assistance to the Revenue in the facts and circumstances of the present case. The Supreme Court was considering completely different sections of Income Tax Act and whose wordings are materially different from the wordings of section 40A(2)(b) of the Act. We therefore find that the reliance placed by Mr Chhotaray on this decision is also wholly misplaced.44. In view of the foregoing discussion, we find that none of the three transactions that form the subject matter of this Petition fall within the meaning of a SDT as required under section 92BA(i) of the I.T. Act. This being the case, we find that Respondent No.1 was clearly in error in concluding that these transactions were SDTs, and therefore required to be disclosed by the Petitioner by filing Form 3CEB. He therefore could not have referred these transactions to Respondent No.2 for determining the ALP.
| 1 | 15,619 | 2,695 |
### 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:
covered under section 92BA(i) of the I.T. Act.TRANSACTION-3PAYMENT OF INTEREST OF RS. 4.41 CRORES BY THE PETITIONER TO HDB WELFARE TRUST.40. As far as this transaction is concerned, it is the case of the Revenue that the Petitioner has deposits of Rs.45.12 Crores from the HDB Employee Welfare Trust and has paid interest of Rs.4.41 Crores. According to the Revenue, the Petitioner has a substantial interest in terms of explanation (b) to section 40A(2)(b) of the Act. Explanation (b) stipulates that in any other case [i.e. other than a person mention in explanation (a)], a person is said to have a substantial interest if such person is at any time during the previous year, beneficially entitled to not less than 20% of the profits of such business or profession.41. We fail to see how the Revenue can contend that the transaction of payment of interest to HBD Welfare Trust and which Trust has been set up for the benefit of its employees, would fall within Explanation (b) to section 40A (2)(b) of the I. T. Act. It is not even the case of the Revenue that the Petitioner is entitled to at least 20% of the profits of the said Trust. The Trust has been set up exclusively for the welfare of its employees and there is no question of the Petitioner being entitled to 20% of the profits of such Trust. This being the case, we find that this transaction also clearly would not fall within section 40A(2)(b) read with explanation (b) thereof to be a SDT as understood and covered by section 92BA(i) of the I. T. Act.42. Before parting, it would only be fair to deal with the judgments relied upon by Mr. Chhotaray. The first decision was of the Karnataka High Court and the other was of the Supreme Court. On carefully going through the decision of the Karnataka High Court in the case of Commissioner of Income Tax Vs. Amco Power Systems Ltd. (supra), we find that the reliance thereon by Mr Chhotaray is wholly misplaced. What the Karnataka High Court was considering in the facts of that case were the provisions of section 79 of the I.T. Act and which are materially different from section 40A(2)(b) which is being considered by us in the present Writ Petition. In fact when one peruses section 79 of the I.T.Act, it is clear that the same deals with carry forward and set off of losses in the case of certain companies. It is on the wording of section 79 of the I.T. Act, that the Karnataka High Court has given a finding that since ABL was having complete control over APIL and even though the shareholding of ABL was reduced to 6% in the year in question, yet by virtue of being the holding company, owning 100 % shares of APIL, the voting power of ABL could not be said to have been reduced to less than 51%. It came to this finding because ABL, together with APIL were having voting power of 51%. This finding of the Karnataka High Court was given because the wordings of section 79 of the I.T. Act are materially different from the wordings of Section 40A(2)(b). We, therefore, find that the reliance placed by Mr Chhotaray on this decision is wholly misconceived.43. Similarly, we find that the reliance placed by Mr Chhotaray on the decision of the Supreme Court in the case of CIT v/s Podar Cement Pvt. Ltd. (supra) is wholly misplaced. In this case, the Supreme Court was called upon to decide whether in law the income derived by the assessee company by letting out flats of a building is taxable under the head Income from other Sources under section 56 of the Act or whether the same was to be taxed as Income from House Property under section 22 of the Act. On carefully going through this judgment, we do not see how this decision in any way supports the contention of Mr Chhotaray. Section 22 of the Act deals with Income from House Property and stipulates that the annual value of property of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purpose of any business of profession carried on by him the profits of which are chargeable to income tax, shall be chargeable to income tax under the head Income from House Property. The owner of house property has also been defined in section 27 and clause (iii) thereof inter alia stipulates that a member of a co-operative society to whom a building or part thereof is allotted or leased under a house building scheme of the society, shall be deemed to be the owner of that building or part thereof. Section 27(iii)(a) and (iii)(b) also set out who shall be deemed to be the owner in certain circumstances. It is whilst interpreting these provisions, the Supreme Court was deciding as to who would be the owner as contemplated under section 22 of the Act. We fail to see that this judgment can be of any assistance to the Revenue in the facts and circumstances of the present case. The Supreme Court was considering completely different sections of Income Tax Act and whose wordings are materially different from the wordings of section 40A(2)(b) of the Act. We therefore find that the reliance placed by Mr Chhotaray on this decision is also wholly misplaced.44. In view of the foregoing discussion, we find that none of the three transactions that form the subject matter of this Petition fall within the meaning of a SDT as required under section 92BA(i) of the I.T. Act. This being the case, we find that Respondent No.1 was clearly in error in concluding that these transactions were SDTs, and therefore required to be disclosed by the Petitioner by filing Form 3CEB. He therefore could not have referred these transactions to Respondent No.2 for determining the ALP.
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### Explanation:
power. In this transaction, the Petitioner can never be said to be beneficial owner of the shares in HBL Global for the simple reason that it holds absolutely no shares in HBD Global. It holds shares in a company called ADFC Ltd., which in turn holds 98.4% shares in HBL Global. This would not mean that either directly or indirectly the Petitioner is the beneficial owner of the shares of HBD Global. We, therefore, find no merit in this contention.For all the aforesaid reasons, we are unable to accept the submission of Mr. Chhotaray that the present transaction (namely the payment made by the Petitioner to HBL Global for services rendered) would fall within the meaning of a SDT as understood and covered under section 92BA(i) of the I.T. Act.We fail to see how the Revenue can contend that the transaction of payment of interest to HBD Welfare Trust and which Trust has been set up for the benefit of its employees, would fall within Explanation (b) to section 40A (2)(b) of the I. T. Act. It is not even the case of the Revenue that the Petitioner is entitled to at least 20% of the profits of the said Trust. The Trust has been set up exclusively for the welfare of its employees and there is no question of the Petitioner being entitled to 20% of the profits of such Trust. This being the case, we find that this transaction also clearly would not fall within section 40A(2)(b) read with explanation (b) thereof to be a SDT as understood and covered by section 92BA(i) of the I. T. Act.42. Before parting, it would only be fair to deal with the judgments relied upon by Mr. Chhotaray. The first decision was of the Karnataka High Court and the other was of the Supreme Court. On carefully going through the decision of the Karnataka High Court in the case of Commissioner of Income Tax Vs. Amco Power Systems Ltd. (supra), we find that the reliance thereon by Mr Chhotaray is wholly misplaced. What the Karnataka High Court was considering in the facts of that case were the provisions of section 79 of the I.T. Act and which are materially different from section 40A(2)(b) which is being considered by us in the present Writ Petition. In fact when one peruses section 79 of the I.T.Act, it is clear that the same deals with carry forward and set off of losses in the case of certain companies. It is on the wording of section 79 of the I.T. Act, that the Karnataka High Court has given a finding that since ABL was having complete control over APIL and even though the shareholding of ABL was reduced to 6% in the year in question, yet by virtue of being the holding company, owning 100 % shares of APIL, the voting power of ABL could not be said to have been reduced to less than 51%. It came to this finding because ABL, together with APIL were having voting power of 51%. This finding of the Karnataka High Court was given because the wordings of section 79 of the I.T. Act are materially different from the wordings of Section 40A(2)(b). We, therefore, find that the reliance placed by Mr Chhotaray on this decision is wholly misconceived.43. Similarly, we find that the reliance placed by Mr Chhotaray on the decision of the Supreme Court in the case of CIT v/s Podar Cement Pvt. Ltd. (supra) is wholly misplaced. In this case, the Supreme Court was called upon to decide whether in law the income derived by the assessee company by letting out flats of a building is taxable under the head Income from other Sources under section 56 of the Act or whether the same was to be taxed as Income from House Property under section 22 of the Act. On carefully going through this judgment, we do not see how this decision in any way supports the contention of Mr Chhotaray. Section 22 of the Act deals with Income from House Property and stipulates that the annual value of property of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purpose of any business of profession carried on by him the profits of which are chargeable to income tax, shall be chargeable to income tax under the head Income from House Property. The owner of house property has also been defined in section 27 and clause (iii) thereof inter alia stipulates that a member of a co-operative society to whom a building or part thereof is allotted or leased under a house building scheme of the society, shall be deemed to be the owner of that building or part thereof. Section 27(iii)(a) and (iii)(b) also set out who shall be deemed to be the owner in certain circumstances. It is whilst interpreting these provisions, the Supreme Court was deciding as to who would be the owner as contemplated under section 22 of the Act. We fail to see that this judgment can be of any assistance to the Revenue in the facts and circumstances of the present case. The Supreme Court was considering completely different sections of Income Tax Act and whose wordings are materially different from the wordings of section 40A(2)(b) of the Act. We therefore find that the reliance placed by Mr Chhotaray on this decision is also wholly misplaced.44. In view of the foregoing discussion, we find that none of the three transactions that form the subject matter of this Petition fall within the meaning of a SDT as required under section 92BA(i) of the I.T. Act. This being the case, we find that Respondent No.1 was clearly in error in concluding that these transactions were SDTs, and therefore required to be disclosed by the Petitioner by filing Form 3CEB. He therefore could not have referred these transactions to Respondent No.2 for determining the ALP.
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M/S. Madnani Construction Corpn.(P)Ltd Vs. Union Of India
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Calcutta v. Engineers-De-Space-Age, (1996) 1 SCC 516 , a two- judge Bench of this Court considered the same question. That was a case under the 1940 Act. In Engineers (supra), the so-called prohibition in the contract relating to payment of interest was in Clause 13(g), which is set out below:- "13(g) No claim for interest will be entertained by the Commissioners with respect to any money or balance which may be in their hands owing to any dispute between themselves and the Contractor or with respect to any delay on the part of the Commissioners in making interim or final payment or otherwise." 49. Relying on the said clause, the appellant in Engineers (supra) argued that there was absolute prohibition against payment of interest. The learned Judges however, relying on the ratio in G.C. Roy (supra) held that Clause 13(g) merely prohibits the Commissioner from entertaining any claim for interest but it does not prohibit the arbitrator from awarding interest. The learned Judges held that such clauses must be strictly construed in view of the ratio of the Constitution Bench in G.C. Roy (supra). The reasoning given by the learned Judges in favour of strict construction runs as follows:- "...Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the arbitrator is not, in any manner, stifled by this term of the contract and the arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified." (Para 4, page 520) 50. It was argued before us by the learned counsel for the respondent that a subsequent Division Bench of this Court in the case of Union of India v. Saraswat Trading Agency & others, JT 2009 (9) SC 648 , has taken a view different from the ratio in Engineers (supra). We do not think so. 51. In Saraswat Trading (supra) the Clause which was construed by the Court as clamping a prohibition on the grant of interest was Clause 31 and which is quoted in paragraph 15 of the judgment at page 656 of the report and runs as follows:- "31. No interest or damage for delay in payment - No interest or damage shall be paid to the Contractor for delay in payment of the bill or any other amount due to the contractor for any reason whatsoever. The Railway Administration will, however, make every endeavour for payment of the bills or other amount due to the contractor within a reasonable time." 52. The learned Judges in Saraswat Trading (supra) in paragraph 16 held that Clause 31 is different from Clause 13(g) which was considered in Engineers (supra). The ratio in Engineers (supra) was not questioned. 53. In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16(2) of GCC and Clause 30 of the SCC do not contain any prohibition on the arbitrator to grant interest. Therefore, the High Court was not right in interfering with the arbitrators award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict construction of those clauses and relying on the ratio in Engineers (supra), find that the said clauses do not impose any bar on the arbitrator in granting interest. 54. Reference in this connection may be made to another Constitution Bench judgment of this Court in the case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others v. N.C. Budharaj (deceased) by Lrs. and others, (2001) 2 SCC 721 . 55. In N.C. Budharaj (supra), Justice Raju, speaking for the majority, considered the question of the arbitrators jurisdiction and authority to grant interest in great detail and also considered both Indian and English cases and the ratio of the Constitution Bench of this Court in G.C. Roy (supra). 56. In paragraph 25 of the judgment the learned Judge summed up the position as follows:- "...By agreeing to settle all the disputes and claims arising out of or relating to the contract between the parties through arbitration instead of having recourse to civil court to vindicate their rights the party concerned cannot be considered to have frittered away and given up any claim which otherwise it could have successfully asserted before courts and obtained relief. By agreeing to have settlement of disputes through arbitration, the party concerned must be understood to have only opted for a different forum of adjudication with less cumbersome procedure, delay and expense and not to abandon all or any of its substantive rights under the various laws in force, according to which only even the arbitrator is obliged to adjudicate the claims referred to him. As long as there is nothing in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amounts due under the contract, or any prohibition to claim interest on the amounts due and become payable under the contract, the jurisdiction of the arbitrator to consider and award interest in respect of all periods subject only to Section 29 of the Arbitration Act, 1940 and that too the powers of the court thereunder, has to be upheld." (Emphasis supplied) 57. We are constrained to note that Honble High Court unfortunately erred in appreciating the ratio of N.C. Budharaj (supra) in passing the impugned judgment and order.
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1[ds]50. It was argued before us by the learned counsel for the respondent that a subsequent Division Bench of this Court in the case of Union of India v. Saraswat Trading Agency & others, JT 2009 (9) SC 648 , has taken a view different from the ratio in Engineers (supra). We do not think so51. In Saraswat Trading (supra) the Clause which was construed by the Court as clamping a prohibition on the grant of interest was Clause 31 and which is quoted in paragraph 15 of the judgment at page 656 of the report and runs as follows:-"31. No interest or damage for delay in payment - No interest or damage shall be paid to the Contractor for delay in payment of the bill or any other amount due to the contractor for any reason whatsoever. The Railway Administration will, however, make every endeavour for payment of the bills or other amount due to the contractor within a reasonable time."52. The learned Judges in Saraswat Trading (supra) in paragraph 16 held that Clause 31 is different from Clause 13(g) which was considered in Engineers (supra). The ratio in Engineers (supra) was not questioned53. In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16(2) of GCC and Clause 30 of the SCC do not contain any prohibition on the arbitrator to grant interest. Therefore, the High Court was not right in interfering with the arbitrators award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict construction of those clauses and relying on the ratio in Engineers (supra), find that the said clauses do not impose any bar on the arbitrator in granting interest54. Reference in this connection may be made to another Constitution Bench judgment of this Court in the case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others v. N.C. Budharaj (deceased) by Lrs. and others, (2001) 2 SCC 721 55. In N.C. Budharaj (supra), Justice Raju, speaking for the majority, considered the question of the arbitrators jurisdiction and authority to grant interest in great detail and also considered both Indian and English cases and the ratio of the Constitution Bench of this Court in G.C. Roy (supra)56. In paragraph 25 of the judgment the learned Judge summed up the position as follows:-"...By agreeing to settle all the disputes and claims arising out of or relating to the contract between the parties through arbitration instead of having recourse to civil court to vindicate their rights the party concerned cannot be considered to have frittered away and given up any claim which otherwise it could have successfully asserted before courts and obtained relief. By agreeing to have settlement of disputes through arbitration, the party concerned must be understood to have only opted for a different forum of adjudication with less cumbersome procedure, delay and expense and not to abandon all or any of its substantive rights under the various laws in force, according to which only even the arbitrator is obliged to adjudicate the claims referred to him. As long as there is nothing in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amounts due under the contract, or any prohibition to claim interest on the amounts due and become payable under the contract, the jurisdiction of the arbitrator to consider and award interest in respect of all periods subject only to Section 29 of the Arbitration Act, 1940 and that too the powers of the court thereunder, has to be upheld."57. We are constrained to note that Honble High Court unfortunately erred in appreciating the ratio of N.C. Budharaj (supra) in passing the impugned judgment and order
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### 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:
Calcutta v. Engineers-De-Space-Age, (1996) 1 SCC 516 , a two- judge Bench of this Court considered the same question. That was a case under the 1940 Act. In Engineers (supra), the so-called prohibition in the contract relating to payment of interest was in Clause 13(g), which is set out below:- "13(g) No claim for interest will be entertained by the Commissioners with respect to any money or balance which may be in their hands owing to any dispute between themselves and the Contractor or with respect to any delay on the part of the Commissioners in making interim or final payment or otherwise." 49. Relying on the said clause, the appellant in Engineers (supra) argued that there was absolute prohibition against payment of interest. The learned Judges however, relying on the ratio in G.C. Roy (supra) held that Clause 13(g) merely prohibits the Commissioner from entertaining any claim for interest but it does not prohibit the arbitrator from awarding interest. The learned Judges held that such clauses must be strictly construed in view of the ratio of the Constitution Bench in G.C. Roy (supra). The reasoning given by the learned Judges in favour of strict construction runs as follows:- "...Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the arbitrator is not, in any manner, stifled by this term of the contract and the arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified." (Para 4, page 520) 50. It was argued before us by the learned counsel for the respondent that a subsequent Division Bench of this Court in the case of Union of India v. Saraswat Trading Agency & others, JT 2009 (9) SC 648 , has taken a view different from the ratio in Engineers (supra). We do not think so. 51. In Saraswat Trading (supra) the Clause which was construed by the Court as clamping a prohibition on the grant of interest was Clause 31 and which is quoted in paragraph 15 of the judgment at page 656 of the report and runs as follows:- "31. No interest or damage for delay in payment - No interest or damage shall be paid to the Contractor for delay in payment of the bill or any other amount due to the contractor for any reason whatsoever. The Railway Administration will, however, make every endeavour for payment of the bills or other amount due to the contractor within a reasonable time." 52. The learned Judges in Saraswat Trading (supra) in paragraph 16 held that Clause 31 is different from Clause 13(g) which was considered in Engineers (supra). The ratio in Engineers (supra) was not questioned. 53. In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16(2) of GCC and Clause 30 of the SCC do not contain any prohibition on the arbitrator to grant interest. Therefore, the High Court was not right in interfering with the arbitrators award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict construction of those clauses and relying on the ratio in Engineers (supra), find that the said clauses do not impose any bar on the arbitrator in granting interest. 54. Reference in this connection may be made to another Constitution Bench judgment of this Court in the case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others v. N.C. Budharaj (deceased) by Lrs. and others, (2001) 2 SCC 721 . 55. In N.C. Budharaj (supra), Justice Raju, speaking for the majority, considered the question of the arbitrators jurisdiction and authority to grant interest in great detail and also considered both Indian and English cases and the ratio of the Constitution Bench of this Court in G.C. Roy (supra). 56. In paragraph 25 of the judgment the learned Judge summed up the position as follows:- "...By agreeing to settle all the disputes and claims arising out of or relating to the contract between the parties through arbitration instead of having recourse to civil court to vindicate their rights the party concerned cannot be considered to have frittered away and given up any claim which otherwise it could have successfully asserted before courts and obtained relief. By agreeing to have settlement of disputes through arbitration, the party concerned must be understood to have only opted for a different forum of adjudication with less cumbersome procedure, delay and expense and not to abandon all or any of its substantive rights under the various laws in force, according to which only even the arbitrator is obliged to adjudicate the claims referred to him. As long as there is nothing in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amounts due under the contract, or any prohibition to claim interest on the amounts due and become payable under the contract, the jurisdiction of the arbitrator to consider and award interest in respect of all periods subject only to Section 29 of the Arbitration Act, 1940 and that too the powers of the court thereunder, has to be upheld." (Emphasis supplied) 57. We are constrained to note that Honble High Court unfortunately erred in appreciating the ratio of N.C. Budharaj (supra) in passing the impugned judgment and order.
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### Explanation:
50. It was argued before us by the learned counsel for the respondent that a subsequent Division Bench of this Court in the case of Union of India v. Saraswat Trading Agency & others, JT 2009 (9) SC 648 , has taken a view different from the ratio in Engineers (supra). We do not think so51. In Saraswat Trading (supra) the Clause which was construed by the Court as clamping a prohibition on the grant of interest was Clause 31 and which is quoted in paragraph 15 of the judgment at page 656 of the report and runs as follows:-"31. No interest or damage for delay in payment - No interest or damage shall be paid to the Contractor for delay in payment of the bill or any other amount due to the contractor for any reason whatsoever. The Railway Administration will, however, make every endeavour for payment of the bills or other amount due to the contractor within a reasonable time."52. The learned Judges in Saraswat Trading (supra) in paragraph 16 held that Clause 31 is different from Clause 13(g) which was considered in Engineers (supra). The ratio in Engineers (supra) was not questioned53. In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16(2) of GCC and Clause 30 of the SCC do not contain any prohibition on the arbitrator to grant interest. Therefore, the High Court was not right in interfering with the arbitrators award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict construction of those clauses and relying on the ratio in Engineers (supra), find that the said clauses do not impose any bar on the arbitrator in granting interest54. Reference in this connection may be made to another Constitution Bench judgment of this Court in the case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others v. N.C. Budharaj (deceased) by Lrs. and others, (2001) 2 SCC 721 55. In N.C. Budharaj (supra), Justice Raju, speaking for the majority, considered the question of the arbitrators jurisdiction and authority to grant interest in great detail and also considered both Indian and English cases and the ratio of the Constitution Bench of this Court in G.C. Roy (supra)56. In paragraph 25 of the judgment the learned Judge summed up the position as follows:-"...By agreeing to settle all the disputes and claims arising out of or relating to the contract between the parties through arbitration instead of having recourse to civil court to vindicate their rights the party concerned cannot be considered to have frittered away and given up any claim which otherwise it could have successfully asserted before courts and obtained relief. By agreeing to have settlement of disputes through arbitration, the party concerned must be understood to have only opted for a different forum of adjudication with less cumbersome procedure, delay and expense and not to abandon all or any of its substantive rights under the various laws in force, according to which only even the arbitrator is obliged to adjudicate the claims referred to him. As long as there is nothing in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amounts due under the contract, or any prohibition to claim interest on the amounts due and become payable under the contract, the jurisdiction of the arbitrator to consider and award interest in respect of all periods subject only to Section 29 of the Arbitration Act, 1940 and that too the powers of the court thereunder, has to be upheld."57. We are constrained to note that Honble High Court unfortunately erred in appreciating the ratio of N.C. Budharaj (supra) in passing the impugned judgment and order
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Laljee Dubey & Others Vs. Union of India & Others
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a rule framed by the President of India.12. In view of the division the question was referred to the third learned Judge as to whether the letter dated 17 November, 1953 constituted a rule framed by the President under Article 309. The third learned Judge held that the letter was of a composite nature. There were ad hoc directions in respect of certain checkers. The letter also laid down some conditions of service which would apply to the remaining checkers. The letter did not constitute a rule framed by the President of India under Article 309. The letter merely contained an order of an administrative or executive nature. This view of the third learned Judge became the majority view of the High Court.13. Counsel on behalf of the appellants contended that the letter dated 17 November, 1953 should be implemented because the Government accepted the recommendation of Kalyanwala Committee. Counsel for the appellants submitted these reasons. Denial of the benefits of the order to the appellants is violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution. Other checkers performing duties similar to those of the appellants have been granted the benefit of the order contained in the letter dated 17 November, 1953 whereas the appellants who are similarly situate have been arbitrarily denied the benefit of the same.14. In the recent decision in Purshottam Lal v. Union of India, (1973) 1 SCC 651 = (AIR 1973 SC 1088 ) this Court held that the Government was bound to implement the recommendations of the Second Pay Commission and if the Government did not implement the report regarding some employees only there would be a breach of Article 14 and 16 of the Constitution In Purshottam Lal case, (1973) 1 SCC 651 = (AIR 1973 SC 1088 ) (supra) the Government of India set up a Commission called the "Second Pay Commission" to enquire into emoluments and conditions of service of Central Government employees purshottam Lal and others were employed in the Forest Research Institute and Colleges, Dehra Dun. They were Research Assistants. Their contention was that their case was covered by the recommendations of the Commission. On 2 August, 1960 the Government issued a notification giving effect to the recommendations of the Pay Commission. On 21 June, 1962 the Government of India revised the pay scales of the petitioners and stated that the revision of the pay scales of the petitioners would take effect from the date of the issue of the order. The petitioners contended that the revised pay scales of similar posts in similar sister institutes of the Research Institute under the same Ministry had been implemented from 1 July, 1959 according to the Second Pay Commission recommendations, and, therefore, the petitioners were entitled to the benefit of the retrospective date, viz, 1 July, 1959. The Government contended that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine what categories of employees should be taken to have been included in the terms of reference. This Court did not accept the contention of the Government. The Government made reference in respect of all Government employees. The Government accepted the recommendations. Therefore, the Government was bound to implement the recommendations in respect of all Government employees. The reason given by this Court was that if the Government did not implement the Report regarding some employees only there would be a breach of Articles 14 and 16 of the Constitution.15. In the present case the letter dated 17 November, 1953 shows that the President of India gave sanction to the recommendations of Kalyanwala Committee. The authorities admitted some of the persons as lower division clerks and left others to their own posts. The direction containing the sanction of the President indicates that checkers who had the requisite qualifications, viz., passing the matriculation examination or in the alternative three years continuous service in the department were to be put in the category of lower division clerks. The letter dated 17 November, 1953 divided checkers into two groups. The first group consisted of checkers who possessed the necessary qualifications as laid down in that order. The second group consisted of those who did not possess that qualification. In the case of persons of the first group the authorities concerned could not have any option to make any selection among such persons. The direction in that letter indicates that such persons should be classified as lower division clerks. In the case of the second group, viz., those who did not fulfil the qualification requirements it was left open to the authorities to exercise their discretion and classify some of the checkers in the post of lower division clerk if they considered them to be fit and suitable to serve in those posts. The appellants were, therefore, entitled to be designated as lower division clerks, in accordance with the directions contained in the letter dated 17 November 1953. There has been arbitrary discrimination against the appellants.16. In another decision in Union of India v. K. P. Joseph, not yet reported in Supreme Court Reports but reported in AIR 1973 SC 303 = (1973 Lab IC 191) this Court considered whether a general order described as Office Memorandum providing for certain benefits to ex-military personnel on re-employment on the basis of their length of actual military service conferred any right relating to conditions of service. This Court held that the persons mentioned in the order were entitled to have their pay fixed in the manner specified in the order and that was part of the conditions of service.17. It is not necessary to express any opinion as to whether the letter dated 17 November, 1953 became a rule under Article 309 of the Constitution. For the purposes of the appeal it is sufficient to hold that the letter has been accepted by the authorities and given effect to in case of some of the employees belonging to the same group as the appellants.
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1[ds]Denial of the benefits of the order to the appellants is violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution. Other checkers performing duties similar to those of the appellants have been granted the benefit of the order contained in the letter dated 17 November, 1953 whereas the appellants who are similarly situate have been arbitrarily denied the benefit of the same.In the present case the letter dated 17 November, 1953 shows that the President of India gave sanction to the recommendations of Kalyanwala Committee. The authorities admitted some of the persons as lower division clerks and left others to their own posts. The direction containing the sanction of the President indicates that checkers who had the requisite qualifications, viz., passing the matriculation examination or in the alternative three years continuous service in the department were to be put in the category of lower division clerks. The letter dated 17 November, 1953 divided checkers into two groups. The first group consisted of checkers who possessed the necessary qualifications as laid down in that order. The second group consisted of those who did not possess that qualification. In the case of persons of the first group the authorities concerned could not have any option to make any selection among such persons. The direction in that letter indicates that such persons should be classified as lower division clerks. In the case of the second group, viz., those who did not fulfil the qualification requirements it was left open to the authorities to exercise their discretion and classify some of the checkers in the post of lower division clerk if they considered them to be fit and suitable to serve in those posts. The appellants were, therefore, entitled to be designated as lower division clerks, in accordance with the directions contained in the letter dated 17 November 1953. There has been arbitrary discrimination against the appellants.It is not necessary to express any opinion as to whether the letter dated 17 November, 1953 became a rule under Article 309 of the Constitution. For the purposes of the appeal it is sufficient to hold that the letter has been accepted by the authorities and given effect to in case of some of the employees belonging to the same group as the appellants.
| 1 | 2,236 | 409 |
### 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:
a rule framed by the President of India.12. In view of the division the question was referred to the third learned Judge as to whether the letter dated 17 November, 1953 constituted a rule framed by the President under Article 309. The third learned Judge held that the letter was of a composite nature. There were ad hoc directions in respect of certain checkers. The letter also laid down some conditions of service which would apply to the remaining checkers. The letter did not constitute a rule framed by the President of India under Article 309. The letter merely contained an order of an administrative or executive nature. This view of the third learned Judge became the majority view of the High Court.13. Counsel on behalf of the appellants contended that the letter dated 17 November, 1953 should be implemented because the Government accepted the recommendation of Kalyanwala Committee. Counsel for the appellants submitted these reasons. Denial of the benefits of the order to the appellants is violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution. Other checkers performing duties similar to those of the appellants have been granted the benefit of the order contained in the letter dated 17 November, 1953 whereas the appellants who are similarly situate have been arbitrarily denied the benefit of the same.14. In the recent decision in Purshottam Lal v. Union of India, (1973) 1 SCC 651 = (AIR 1973 SC 1088 ) this Court held that the Government was bound to implement the recommendations of the Second Pay Commission and if the Government did not implement the report regarding some employees only there would be a breach of Article 14 and 16 of the Constitution In Purshottam Lal case, (1973) 1 SCC 651 = (AIR 1973 SC 1088 ) (supra) the Government of India set up a Commission called the "Second Pay Commission" to enquire into emoluments and conditions of service of Central Government employees purshottam Lal and others were employed in the Forest Research Institute and Colleges, Dehra Dun. They were Research Assistants. Their contention was that their case was covered by the recommendations of the Commission. On 2 August, 1960 the Government issued a notification giving effect to the recommendations of the Pay Commission. On 21 June, 1962 the Government of India revised the pay scales of the petitioners and stated that the revision of the pay scales of the petitioners would take effect from the date of the issue of the order. The petitioners contended that the revised pay scales of similar posts in similar sister institutes of the Research Institute under the same Ministry had been implemented from 1 July, 1959 according to the Second Pay Commission recommendations, and, therefore, the petitioners were entitled to the benefit of the retrospective date, viz, 1 July, 1959. The Government contended that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine what categories of employees should be taken to have been included in the terms of reference. This Court did not accept the contention of the Government. The Government made reference in respect of all Government employees. The Government accepted the recommendations. Therefore, the Government was bound to implement the recommendations in respect of all Government employees. The reason given by this Court was that if the Government did not implement the Report regarding some employees only there would be a breach of Articles 14 and 16 of the Constitution.15. In the present case the letter dated 17 November, 1953 shows that the President of India gave sanction to the recommendations of Kalyanwala Committee. The authorities admitted some of the persons as lower division clerks and left others to their own posts. The direction containing the sanction of the President indicates that checkers who had the requisite qualifications, viz., passing the matriculation examination or in the alternative three years continuous service in the department were to be put in the category of lower division clerks. The letter dated 17 November, 1953 divided checkers into two groups. The first group consisted of checkers who possessed the necessary qualifications as laid down in that order. The second group consisted of those who did not possess that qualification. In the case of persons of the first group the authorities concerned could not have any option to make any selection among such persons. The direction in that letter indicates that such persons should be classified as lower division clerks. In the case of the second group, viz., those who did not fulfil the qualification requirements it was left open to the authorities to exercise their discretion and classify some of the checkers in the post of lower division clerk if they considered them to be fit and suitable to serve in those posts. The appellants were, therefore, entitled to be designated as lower division clerks, in accordance with the directions contained in the letter dated 17 November 1953. There has been arbitrary discrimination against the appellants.16. In another decision in Union of India v. K. P. Joseph, not yet reported in Supreme Court Reports but reported in AIR 1973 SC 303 = (1973 Lab IC 191) this Court considered whether a general order described as Office Memorandum providing for certain benefits to ex-military personnel on re-employment on the basis of their length of actual military service conferred any right relating to conditions of service. This Court held that the persons mentioned in the order were entitled to have their pay fixed in the manner specified in the order and that was part of the conditions of service.17. It is not necessary to express any opinion as to whether the letter dated 17 November, 1953 became a rule under Article 309 of the Constitution. For the purposes of the appeal it is sufficient to hold that the letter has been accepted by the authorities and given effect to in case of some of the employees belonging to the same group as the appellants.
### Response:
1
### Explanation:
Denial of the benefits of the order to the appellants is violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution. Other checkers performing duties similar to those of the appellants have been granted the benefit of the order contained in the letter dated 17 November, 1953 whereas the appellants who are similarly situate have been arbitrarily denied the benefit of the same.In the present case the letter dated 17 November, 1953 shows that the President of India gave sanction to the recommendations of Kalyanwala Committee. The authorities admitted some of the persons as lower division clerks and left others to their own posts. The direction containing the sanction of the President indicates that checkers who had the requisite qualifications, viz., passing the matriculation examination or in the alternative three years continuous service in the department were to be put in the category of lower division clerks. The letter dated 17 November, 1953 divided checkers into two groups. The first group consisted of checkers who possessed the necessary qualifications as laid down in that order. The second group consisted of those who did not possess that qualification. In the case of persons of the first group the authorities concerned could not have any option to make any selection among such persons. The direction in that letter indicates that such persons should be classified as lower division clerks. In the case of the second group, viz., those who did not fulfil the qualification requirements it was left open to the authorities to exercise their discretion and classify some of the checkers in the post of lower division clerk if they considered them to be fit and suitable to serve in those posts. The appellants were, therefore, entitled to be designated as lower division clerks, in accordance with the directions contained in the letter dated 17 November 1953. There has been arbitrary discrimination against the appellants.It is not necessary to express any opinion as to whether the letter dated 17 November, 1953 became a rule under Article 309 of the Constitution. For the purposes of the appeal it is sufficient to hold that the letter has been accepted by the authorities and given effect to in case of some of the employees belonging to the same group as the appellants.
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Kani Ram & Another Vs. Kazani & Others
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1. This is an appeal by special leave from a judgment of the Delhi High Court. 2. One Jaigopal instituted a suit for ejectment and recovery of rent under Clauses (a) and (e) of Section 13 of the Delhi and Ajmer Rent control Act 1952 in respect of a house situate in Pahargunj against the tenant. The grounds on which ejectment was sought were non-payment of rent and bona fide personal requirement of the landlord. The suit was resisted by the tenant on various grounds but ultimately on June 2, 1956 a decree for ejectment was passed on the basis of a compromise. The suit with regard to the recovery of arrears of rent was dismissed. On June 6, 1959, the decree holder filed an application for execution of the decree. The tenant raised various objections: one of the objections was that the decree sought to be executed was based on a compromise and not on any findings of the Court with the result that it was a nullity. On September 7, 1960 the Execution Court dismissed the objection and allowed the execution application of the landlord. That order was confirmed in appeal by the Additional Senior Sub-Judge on October 13, 1961. The judgment-debtor went up in revision but the same was dismissed by Mahajan J. on December 19, 1962. 3. In March 1962, Jaigopal the decree holder had sold 1/2 share in the house in dispute to Kani Ram and Babu Lal the present appellants before us. The remaining 1/2 share was sold by him to one Ramjilal. In the year 1963 an execution application was filed by the appellants and Ramjilal after obtaining the necessary orders of the Court under Order 21, Rule 16 of the Code of Civil Procedure. In 1969 the appellants also obtained the order of the competent authority under the Slum Areas (Improvement and Clearance) Act to execute the decree for eviction. On February 9, 1968 Ramjilal sold his right, title and interest in a portion of the house in dispute to Tara Chand, one of the judgment-debtors. On July, 26, 1968 an application for execution was filed against the present respondents which was allowed by the Executing Court. An appeal against that order by the respondent failed. The matter was taken in revision by the respondent to the High Court and a learned single Judge allowed the revision application and directed the execution application to be dismissed. 4. There are only two points which required determination. One is whether the matters agitated in the second set of execution proceedings were barred by the applicability of constructive res judicata. The other is whether the original decree for ejectment was valid and was not a nullity. The High Court took the view that the decisions of the Courts in the first set of execution proceedings did not operate as res judicata as the substantial question involved was purely one of law. According to the High Court a decree for ejectment obtained under the Delhi and Ajmer Rent Control Act on the basis of compromise was a nullity. Although in the previous execution proceedings which ended with the order of Mahajan, J., made on December 19, 1962 it had been held that the decree was valid that decision could not bar an objection being raised by the judgment-debtors in the second set of proceedings with regard to the validity of the decree which was a pure question of law . In our judgment the High Court fell into an error in considering that the decision of the Courts in the previous execution proceedings ending with the order of Mahajan, J., made on December 19, 1962 involved a pure question of law. A perusal of the orders both of the Executing Court and the first appellate Court shows that it was on an examination of the entire facts that the Courts arrived at the conclusion that when the decree for ejectment was made the Court had satisfied itself about the existence of the grounds which has been alleged in the petition filed by the landlord. 5. It is true that Section 13 (1) of the Rent Control Act prohibited the Court from passing the decree or order for recovery of possession of any premises in favour of a landlord against the tenant unless the Court was satisfied that one or more of the grounds given in that provision existed: (See Bahadur Singh v. Muni Subrat Das, (1969) 2 SCR 432 ). In the judgment of the Senior Subordinate Judge dated October 30, 1961 given in the first set of execution proceedings the various circumstances were considered by which the learned Judge came to the conclusion that the Court which passed the decree for eviction was satisfied that one or more of the grounds mentioned in Section 13 of the Rent Control Act had been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and fact. Such a decision undoubtedly would operate as res judicata. In execution proceedings Section 11 of the code of Civil Procedure does not apply in terms but the rule of constructive res judicata has always been applied. Even according to the judgment of this Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 3 SCR 830 = (AIR 1971 SC 2355 ) on which the learned Judge of the High Court relied in the judgment under appeal laid down that a mixed question of law and fact determined in the earlier proceedings between the same parties could not be questioned in a subsequent proceedings between them. We have no manner of doubt for these reasons that the High Court was wrong in not sustaining the judgment of the Senior Sub-Judge, Delhi, dated November 14, 1969 by which the order of the Executing Court dated August 23, 1969 had been upheld. In this view of the matter the second point calls for no decision.
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1[ds]The High Court took the view that the decisions of the Courts in the first set of execution proceedings did not operate as res judicata as the substantial question involved was purely one of law. According to the High Court a decree for ejectment obtained under the Delhi and Ajmer Rent Control Act on the basis of compromise was a nullity. Although in the previous execution proceedings which ended with the order of Mahajan, J., made on December 19, 1962 it had been held that the decree was valid that decision could not bar an objection being raised by the judgment-debtors in the second set of proceedings with regard to the validity of the decree which was a pure question of law . In our judgment the High Court fell into an error in considering that the decision of the Courts in the previous execution proceedings ending with the order of Mahajan, J., made on December 19, 1962 involved a pure question of law. A perusal of the orders both of the Executing Court and the first appellate Court shows that it was on an examination of the entire facts that the Courts arrived at the conclusion that when the decree for ejectment was made the Court had satisfied itself about the existence of the grounds which has been alleged in the petition filed by the landlord5. It is true that Section 13 (1) of the Rent Control Act prohibited the Court from passing the decree or order for recovery of possession of any premises in favour of a landlord against the tenant unless the Court was satisfied that one or more of the grounds given in that provision existed: (See Bahadur Singh v. Muni Subrat Das, (1969) 2 SCR 432 ). In the judgment of the Senior Subordinate Judge dated October 30, 1961 given in the first set of execution proceedings the various circumstances were considered by which the learned Judge came to the conclusion that the Court which passed the decree for eviction was satisfied that one or more of the grounds mentioned in Section 13 of the Rent Control Act had been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and fact. Such a decision undoubtedly would operate as res judicata. In execution proceedings Section 11 of the code of Civil Procedure does not apply in terms but the rule of constructive res judicata has always been applied. Even according to the judgment of this Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 3 SCR 830 = (AIR 1971 SC 2355 ) on which the learned Judge of the High Court relied in the judgment under appeal laid down that a mixed question of law and fact determined in the earlier proceedings between the same parties could not be questioned in a subsequent proceedings between them. We have no manner of doubt for these reasons that the High Court was wrong in not sustaining the judgment of the Senior Sub-Judge, Delhi, dated November 14, 1969 by which the order of the Executing Court dated August 23, 1969 had been upheld. In this view of the matter the second point calls for no decision.
| 1 | 1,084 | 586 |
### 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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1. This is an appeal by special leave from a judgment of the Delhi High Court. 2. One Jaigopal instituted a suit for ejectment and recovery of rent under Clauses (a) and (e) of Section 13 of the Delhi and Ajmer Rent control Act 1952 in respect of a house situate in Pahargunj against the tenant. The grounds on which ejectment was sought were non-payment of rent and bona fide personal requirement of the landlord. The suit was resisted by the tenant on various grounds but ultimately on June 2, 1956 a decree for ejectment was passed on the basis of a compromise. The suit with regard to the recovery of arrears of rent was dismissed. On June 6, 1959, the decree holder filed an application for execution of the decree. The tenant raised various objections: one of the objections was that the decree sought to be executed was based on a compromise and not on any findings of the Court with the result that it was a nullity. On September 7, 1960 the Execution Court dismissed the objection and allowed the execution application of the landlord. That order was confirmed in appeal by the Additional Senior Sub-Judge on October 13, 1961. The judgment-debtor went up in revision but the same was dismissed by Mahajan J. on December 19, 1962. 3. In March 1962, Jaigopal the decree holder had sold 1/2 share in the house in dispute to Kani Ram and Babu Lal the present appellants before us. The remaining 1/2 share was sold by him to one Ramjilal. In the year 1963 an execution application was filed by the appellants and Ramjilal after obtaining the necessary orders of the Court under Order 21, Rule 16 of the Code of Civil Procedure. In 1969 the appellants also obtained the order of the competent authority under the Slum Areas (Improvement and Clearance) Act to execute the decree for eviction. On February 9, 1968 Ramjilal sold his right, title and interest in a portion of the house in dispute to Tara Chand, one of the judgment-debtors. On July, 26, 1968 an application for execution was filed against the present respondents which was allowed by the Executing Court. An appeal against that order by the respondent failed. The matter was taken in revision by the respondent to the High Court and a learned single Judge allowed the revision application and directed the execution application to be dismissed. 4. There are only two points which required determination. One is whether the matters agitated in the second set of execution proceedings were barred by the applicability of constructive res judicata. The other is whether the original decree for ejectment was valid and was not a nullity. The High Court took the view that the decisions of the Courts in the first set of execution proceedings did not operate as res judicata as the substantial question involved was purely one of law. According to the High Court a decree for ejectment obtained under the Delhi and Ajmer Rent Control Act on the basis of compromise was a nullity. Although in the previous execution proceedings which ended with the order of Mahajan, J., made on December 19, 1962 it had been held that the decree was valid that decision could not bar an objection being raised by the judgment-debtors in the second set of proceedings with regard to the validity of the decree which was a pure question of law . In our judgment the High Court fell into an error in considering that the decision of the Courts in the previous execution proceedings ending with the order of Mahajan, J., made on December 19, 1962 involved a pure question of law. A perusal of the orders both of the Executing Court and the first appellate Court shows that it was on an examination of the entire facts that the Courts arrived at the conclusion that when the decree for ejectment was made the Court had satisfied itself about the existence of the grounds which has been alleged in the petition filed by the landlord. 5. It is true that Section 13 (1) of the Rent Control Act prohibited the Court from passing the decree or order for recovery of possession of any premises in favour of a landlord against the tenant unless the Court was satisfied that one or more of the grounds given in that provision existed: (See Bahadur Singh v. Muni Subrat Das, (1969) 2 SCR 432 ). In the judgment of the Senior Subordinate Judge dated October 30, 1961 given in the first set of execution proceedings the various circumstances were considered by which the learned Judge came to the conclusion that the Court which passed the decree for eviction was satisfied that one or more of the grounds mentioned in Section 13 of the Rent Control Act had been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and fact. Such a decision undoubtedly would operate as res judicata. In execution proceedings Section 11 of the code of Civil Procedure does not apply in terms but the rule of constructive res judicata has always been applied. Even according to the judgment of this Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 3 SCR 830 = (AIR 1971 SC 2355 ) on which the learned Judge of the High Court relied in the judgment under appeal laid down that a mixed question of law and fact determined in the earlier proceedings between the same parties could not be questioned in a subsequent proceedings between them. We have no manner of doubt for these reasons that the High Court was wrong in not sustaining the judgment of the Senior Sub-Judge, Delhi, dated November 14, 1969 by which the order of the Executing Court dated August 23, 1969 had been upheld. In this view of the matter the second point calls for no decision.
### Response:
1
### Explanation:
The High Court took the view that the decisions of the Courts in the first set of execution proceedings did not operate as res judicata as the substantial question involved was purely one of law. According to the High Court a decree for ejectment obtained under the Delhi and Ajmer Rent Control Act on the basis of compromise was a nullity. Although in the previous execution proceedings which ended with the order of Mahajan, J., made on December 19, 1962 it had been held that the decree was valid that decision could not bar an objection being raised by the judgment-debtors in the second set of proceedings with regard to the validity of the decree which was a pure question of law . In our judgment the High Court fell into an error in considering that the decision of the Courts in the previous execution proceedings ending with the order of Mahajan, J., made on December 19, 1962 involved a pure question of law. A perusal of the orders both of the Executing Court and the first appellate Court shows that it was on an examination of the entire facts that the Courts arrived at the conclusion that when the decree for ejectment was made the Court had satisfied itself about the existence of the grounds which has been alleged in the petition filed by the landlord5. It is true that Section 13 (1) of the Rent Control Act prohibited the Court from passing the decree or order for recovery of possession of any premises in favour of a landlord against the tenant unless the Court was satisfied that one or more of the grounds given in that provision existed: (See Bahadur Singh v. Muni Subrat Das, (1969) 2 SCR 432 ). In the judgment of the Senior Subordinate Judge dated October 30, 1961 given in the first set of execution proceedings the various circumstances were considered by which the learned Judge came to the conclusion that the Court which passed the decree for eviction was satisfied that one or more of the grounds mentioned in Section 13 of the Rent Control Act had been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and fact. Such a decision undoubtedly would operate as res judicata. In execution proceedings Section 11 of the code of Civil Procedure does not apply in terms but the rule of constructive res judicata has always been applied. Even according to the judgment of this Court in Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 3 SCR 830 = (AIR 1971 SC 2355 ) on which the learned Judge of the High Court relied in the judgment under appeal laid down that a mixed question of law and fact determined in the earlier proceedings between the same parties could not be questioned in a subsequent proceedings between them. We have no manner of doubt for these reasons that the High Court was wrong in not sustaining the judgment of the Senior Sub-Judge, Delhi, dated November 14, 1969 by which the order of the Executing Court dated August 23, 1969 had been upheld. In this view of the matter the second point calls for no decision.
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Lal Bahadur Vs. State of Uttar Pradesh and Ors
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the jurisdiction of this Court Under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation, see Bandhua Mukti Morcha v. Union of India (1984) 2 SCR 67 : AIR 1984 SC 802 ; Sachindanand Pandey v. State of W.B. (1987) 2 SCC 295 : AIR 1987 SC 1109 ; Ramsharan Autyanuprasi v. Union of India (1989) 1 Supp SCC 251 : AIR 1989 SC 549 and Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. (1990) 4 SCC 449 : AIR 1990 SC 2060 . (Emphasis supplied) 20. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 : AIR 2000 SC 1997 , it was held that any disturbance to the basic environment, air or water, and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. In such cases polluter pay principle can also be invoked to restore the environment and to control it. It held: 8. Apart from the above statutes and the rules made thereunder, Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild-life of the country. One of the fundamental duties of every citizen as set out in Article 51-A(g) is to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. 9. In the matter of enforcement of rights Under Article 21 of the Constitution, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to fundamental rights Under Articles 14 and 21 of the Constitution and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect life, in order to protect environment and in order to protect air, water and soil from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, Under Article 21 of the Constitution. The judgment for removal of hazardous and obnoxious industries from the residential areas, the directions for closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights Under Article 21, under public law domain, the Court, in exercise of its powers Under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 21. In M.C. Mehta v. Union of India and Ors. (1997) 3 SCC 715 , it was held to be duty of the State to anticipate, prevent and attack the causes of environmental degradation. Considering the Articles 21 and 48-A and also the fundamental duty it has been observed by the concerned officials, it was incumbent upon them to protect such spaces. Residential use of such area would have been contrary to the public interest as such not tolerable. The court held: 9. This Court in Rural Litigation and Entitlement Kendra v. State of U.P. 1986 Supp SCC 517 (sic) : AIR 1987 SC 359 held as under: The consequence of this order made by us would be that the lessee of limestone quarries would be thrown out of business. This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them, to their cattle, homes and agriculture and undue affectation of air, water and environment. 22. In our opinion, the submission raised by the learned Counsel for the Appellant is meritorious that the area should be preserved for green belt as done at present and the provisions made in the master plan 2021 for its conversion into residential area has to be quashed. Unhesitatingly, we agree with the same. 23. As we have held that exercise of conversion was not legal one that will have some impact on the validity of the notification Under Section 4 and dispensation of enquiry to be held Under Section 5-A but in the instant case we find that since the first prayer of the Appellant had been allowed, the area has been ultimately reserved and utilized for the purpose of green belt only and as permitted by this Court park had been developed and it shall be maintained as such.
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1[ds]It is not in dispute that the area had been reserved for green belt in 1995 Master Plan. We find that it was absolutely unwarranted exercise of power on the part of the Respondents to change the area from green belt to residential one in Master Plan 2021. Learned Senior Counsel is right that some invisible hand was behind the change that is why the Respondents acted in tandem and the notification Under Section 4 of the Act had been issued on the same very day on which the Master Plan had been finalised by the State Government. Even before the master plan was notified in the Gazette 09-04-2005, under the Act of 1973, the notification had been issued Under Section 4 of the Act on 31.03.2005. We wholly agree with the submission of the learned Counsel on behalf of the Appellant that change of the area from green belt to residential was, in fact, in flagrant violation of the provisions contained in Articles 21 and 48-A and also 51-A(g) of the Constitution.12. Law is well-settled in this regard. In Bangalore Medical Trust v. B.S. Muddappa and Ors. (1991) 4 SCC 54 : AIR 1991 SC 1902 , this Court had considered the question whether area reserved for a public park can be converted for other purposes. The State Government by the subsequent order had allotted the area reserved for public parks to a Medical Trust, for the purposes of constructing a hospital. This Court has laid down the importance of open spaces and public parks in the said case and held that said spaces are a gift from people to themselves. It observed that:23. The scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the City of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from the ill-effects of urbanisation. It is meant for the development of the city in a way that maximum space is provided for the benefit of the public at large for recreation, enjoyment, ventilation and fresh air. This is clear from the Act itself as it originally stood. The amendments inserting Sections 16(1)(d), 38A and other provisions are clarificatory of this object. The very purpose of the BDA as a statutory authority is to promote the healthy growth and development of the City of Bangalore and the area adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by the preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or alteration of the original legislative intent, but only an elucidation or affirmation of the same.24. Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.25. Reservation of open spaces for parks and playgrounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation.26. In Agins v. City of Tiburon 447 us 255 (1980), the Supreme Court of the United States upheld a zoning ordinance which provided ... it is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant impacts, such as...... pollution, .... destruction of scenic beauty. Disturbance of the ecology and the environment, hazards related geology, fire and flood and other demonstrated consequences of urban sprawl. Upholding the ordinance, the Court said:.... The State of California has determined that the development of local open-space plans will discourage the premature and unnecessary conversion of open-space land to urban uses. The specific zoning regulations at issue are exercises of the citys police power to protect the residents of Tiburon from the ill-effects of urbanization. Such governmental purposes long have been recognized as legitimate.The zoning ordinances benefit the Appellants as well public by serving the citys interest in assuring careful and orderly development of residential property with provision for open-space areas.36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th Century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a gift from people to themselves. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development, it occupies an important place in social ecology. A private nursing home, on the other hand, is essentiality a commercial venture, a profit-oriented industry. Service may be its morn but earning is the objective. Its utility may not be undermined but a park is a necessity, not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house-owners to leave open space in front and back for lawn and fresh air. In 1984 the BD Act itself provided for reservation of not less than fifteen percent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited Under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may given rise to health hazard. Maybe that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home? To say, therefore, that by conversion of a site reserved for low-lying into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.(Emphasis supplied)13. This Court had clearly laid down that such spaces could not be changed from green belt to residential or commercial one. It is not permissible to the State Government to change the parks and playgrounds contrary to legislative intent having constitutional mandate, as that would be an abuse of statutory powers vested in the authorities. No doubt, in the instant case, the legislative process had been undertaken. The Master Plan had been prepared under the Act of 1973. Ultimately, the Respondents have realized the importance of such spaces. It was, therefore, their bounden duty not to change its very purpose when they knew very well that this is a low-lying area and this area is otherwise thickly populated and provides an outlet for water to prevent flood like situation. In fact, the flood like situation occurred in the area in question. This Court has permitted the protection by raising Bandh.14. We have seen the photographs that are placed on record by the learned Counsel for the Respondents. Its a beautiful park that has come up inter alia in the area in question having lake and a large number of trees. Though park has been beautifully developed the very action of change of purpose was wholly uncalled for. The importance of park is of universal recognition. It was against public interest, protection of the environment and such spaces reduce the ill effects of urbanisation, it was not permissible to change this area into urban area as the garden/Greenbelt is essential for fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. The provision of the Act of 1973 and other enactments relating to environment could not be permitted to become statutory mockery by changing the purpose in the master plan from green belts to residential one. Authorities are enjoined with duty maintain them as such as per doctrine of public trust.22. In our opinion, the submission raised by the learned Counsel for the Appellant is meritorious that the area should be preserved for green belt as done at present and the provisions made in the master plan 2021 for its conversion into residential area has to be quashed. Unhesitatingly, we agree with the same.23. As we have held that exercise of conversion was not legal one that will have some impact on the validity of the notification Under Section 4 and dispensation of enquiry to be held Under Section 5-A but in the instant case we find that since the first prayer of the Appellant had been allowed, the area has been ultimately reserved and utilized for the purpose of green belt only and as permitted by this Court park had been developed and it shall be maintained as such.
| 1 | 7,927 | 1,774 |
### 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 jurisdiction of this Court Under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation, see Bandhua Mukti Morcha v. Union of India (1984) 2 SCR 67 : AIR 1984 SC 802 ; Sachindanand Pandey v. State of W.B. (1987) 2 SCC 295 : AIR 1987 SC 1109 ; Ramsharan Autyanuprasi v. Union of India (1989) 1 Supp SCC 251 : AIR 1989 SC 549 and Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. (1990) 4 SCC 449 : AIR 1990 SC 2060 . (Emphasis supplied) 20. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 : AIR 2000 SC 1997 , it was held that any disturbance to the basic environment, air or water, and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. In such cases polluter pay principle can also be invoked to restore the environment and to control it. It held: 8. Apart from the above statutes and the rules made thereunder, Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild-life of the country. One of the fundamental duties of every citizen as set out in Article 51-A(g) is to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. 9. In the matter of enforcement of rights Under Article 21 of the Constitution, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to fundamental rights Under Articles 14 and 21 of the Constitution and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect life, in order to protect environment and in order to protect air, water and soil from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, Under Article 21 of the Constitution. The judgment for removal of hazardous and obnoxious industries from the residential areas, the directions for closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights Under Article 21, under public law domain, the Court, in exercise of its powers Under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 21. In M.C. Mehta v. Union of India and Ors. (1997) 3 SCC 715 , it was held to be duty of the State to anticipate, prevent and attack the causes of environmental degradation. Considering the Articles 21 and 48-A and also the fundamental duty it has been observed by the concerned officials, it was incumbent upon them to protect such spaces. Residential use of such area would have been contrary to the public interest as such not tolerable. The court held: 9. This Court in Rural Litigation and Entitlement Kendra v. State of U.P. 1986 Supp SCC 517 (sic) : AIR 1987 SC 359 held as under: The consequence of this order made by us would be that the lessee of limestone quarries would be thrown out of business. This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them, to their cattle, homes and agriculture and undue affectation of air, water and environment. 22. In our opinion, the submission raised by the learned Counsel for the Appellant is meritorious that the area should be preserved for green belt as done at present and the provisions made in the master plan 2021 for its conversion into residential area has to be quashed. Unhesitatingly, we agree with the same. 23. As we have held that exercise of conversion was not legal one that will have some impact on the validity of the notification Under Section 4 and dispensation of enquiry to be held Under Section 5-A but in the instant case we find that since the first prayer of the Appellant had been allowed, the area has been ultimately reserved and utilized for the purpose of green belt only and as permitted by this Court park had been developed and it shall be maintained as such.
### Response:
1
### Explanation:
statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation.26. In Agins v. City of Tiburon 447 us 255 (1980), the Supreme Court of the United States upheld a zoning ordinance which provided ... it is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant impacts, such as...... pollution, .... destruction of scenic beauty. Disturbance of the ecology and the environment, hazards related geology, fire and flood and other demonstrated consequences of urban sprawl. Upholding the ordinance, the Court said:.... The State of California has determined that the development of local open-space plans will discourage the premature and unnecessary conversion of open-space land to urban uses. The specific zoning regulations at issue are exercises of the citys police power to protect the residents of Tiburon from the ill-effects of urbanization. Such governmental purposes long have been recognized as legitimate.The zoning ordinances benefit the Appellants as well public by serving the citys interest in assuring careful and orderly development of residential property with provision for open-space areas.36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th Century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a gift from people to themselves. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development, it occupies an important place in social ecology. A private nursing home, on the other hand, is essentiality a commercial venture, a profit-oriented industry. Service may be its morn but earning is the objective. Its utility may not be undermined but a park is a necessity, not a mere amenity. A private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis on open air and greenery has multiplied and the city or town planning or development acts of different States require even private house-owners to leave open space in front and back for lawn and fresh air. In 1984 the BD Act itself provided for reservation of not less than fifteen percent of the total area of the layout in a development scheme for public parks and playgrounds the sale and disposition of which is prohibited Under Section 38-A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may given rise to health hazard. Maybe that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home? To say, therefore, that by conversion of a site reserved for low-lying into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.(Emphasis supplied)13. This Court had clearly laid down that such spaces could not be changed from green belt to residential or commercial one. It is not permissible to the State Government to change the parks and playgrounds contrary to legislative intent having constitutional mandate, as that would be an abuse of statutory powers vested in the authorities. No doubt, in the instant case, the legislative process had been undertaken. The Master Plan had been prepared under the Act of 1973. Ultimately, the Respondents have realized the importance of such spaces. It was, therefore, their bounden duty not to change its very purpose when they knew very well that this is a low-lying area and this area is otherwise thickly populated and provides an outlet for water to prevent flood like situation. In fact, the flood like situation occurred in the area in question. This Court has permitted the protection by raising Bandh.14. We have seen the photographs that are placed on record by the learned Counsel for the Respondents. Its a beautiful park that has come up inter alia in the area in question having lake and a large number of trees. Though park has been beautifully developed the very action of change of purpose was wholly uncalled for. The importance of park is of universal recognition. It was against public interest, protection of the environment and such spaces reduce the ill effects of urbanisation, it was not permissible to change this area into urban area as the garden/Greenbelt is essential for fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. The provision of the Act of 1973 and other enactments relating to environment could not be permitted to become statutory mockery by changing the purpose in the master plan from green belts to residential one. Authorities are enjoined with duty maintain them as such as per doctrine of public trust.22. In our opinion, the submission raised by the learned Counsel for the Appellant is meritorious that the area should be preserved for green belt as done at present and the provisions made in the master plan 2021 for its conversion into residential area has to be quashed. Unhesitatingly, we agree with the same.23. As we have held that exercise of conversion was not legal one that will have some impact on the validity of the notification Under Section 4 and dispensation of enquiry to be held Under Section 5-A but in the instant case we find that since the first prayer of the Appellant had been allowed, the area has been ultimately reserved and utilized for the purpose of green belt only and as permitted by this Court park had been developed and it shall be maintained as such.
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Prem Prakash Vs. Santosh Kumar Jain
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he was doing the business in the name and style of M/s R.R. Jewellers. The respondent-owner has brought on record the list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.) Ltd. wherein for R.R. Jewellers, the address mentioned is that of the suit property and the phone number is exactly the same as mentioned on the business card of M/s Aashima Jewellery" i.e., `3901361. Respondent No. 2 has admitted the fact of doing business in the name of M/s Aashima Jewellery" which is also evident from the business card used by him having the address of the suit property and the telephone number `3901361 whereas he denied to have worked under the name and style of M/s R.R. Jewellers but the very fact is falsified by the evidence in the form of subscribers list of Delhi Sanchaar Sewa wherein the same telephone number, i.e., `3901361 has been given. Meaning thereby, Respondent No. 2 was doing business in the suit premises independently of the appellant herein.14. Undoubtedly, the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.15. In this regard, it is appropriate to quote a decision of this Court in Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held that when eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord. If the landlord prima-facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.16. Again, in Kala and Anr. v. Madho Parshad Vaidya, 1998(2) R.C.R.(Rent) 279 : (1998) 6 SCC 573 , this Court reiterated the very same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.17. In Vaishakhi Ram & Ors. v. Sanjeev Kumar Bhatiani 2008(2) R.C.R.(Civil) 202 : 2008(1) R.C.R.(Rent) 311 : 2008(2) Recent Apex Judgments (R.A.J.) 173 : (2008) 14 SCC 356 , it was held as under:-"21.It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. Reliance can be placed on the decision of this Court in Joginder Singh Sodhi v. Amar Kaur. Therefore, we are in full agreement with the High Court as well as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and Appellant 1 could not prove that it was not a case of sub-letting, the suit shop had been sub-let by Appellant 1 in favour of Appellants 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting."18. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case.19. In the present facts and circumstances of the case, we are of the opinion that the original owner-respondent No. 1 herein has proved beyond doubt that the property is in exclusive possession of the sub-tenant and the appellant herein has not been able to deny the claim of sub-tenancy in favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the appellant herein to the Respondent No. 2.Conclusion:-20.
|
0[ds]12. A bare perusal of the visiting card of M/s Ashima Jewellery having the name of Respondent No. 2 clearly proves that thewas neither an employee nor was looking after the customers of the appellant herein in his absence but he was carrying on his personal business under such name. There is no point in denying the fact that why a tenant will allow a person, who is working under him, to print visiting cards in hisname for the property in question.13. Further, the other visiting card is having the name of "M/s R.R. Jewellers". The allegedhas denied the claim in the affidavit filed before the courts below that earlier he was doing the business in the name and style of M/s R.R. Jewellers. Thehas brought on record the list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.) Ltd. wherein for R.R. Jewellers, the address mentioned is that of the suit property and the phone number is exactly the same as mentioned on the business card of M/s Aashima Jewellery" i.e., `3901361. Respondent No. 2 has admitted the fact of doing business in the name of M/s Aashima Jewellery" which is also evident from the business card used by him having the address of the suit property and the telephone number `3901361 whereas he denied to have worked under the name and style of M/s R.R. Jewellers but the very fact is falsified by the evidence in the form of subscribers list of Delhi Sanchaar Sewa wherein the same telephone number, i.e., `3901361 has been given. Meaning thereby, Respondent No. 2 was doing business in the suit premises independently of the appellant herein.14. Undoubtedly, the initial burden to prove that theis in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.In the present facts and circumstances of the case, we are of the opinion that the originalNo. 1 herein has proved beyond doubt that the property is in exclusive possession of theand the appellant herein has not been able to deny the claim ofin favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the appellant herein to the Respondent No. 2.
| 0 | 3,192 | 472 |
### 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:
he was doing the business in the name and style of M/s R.R. Jewellers. The respondent-owner has brought on record the list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.) Ltd. wherein for R.R. Jewellers, the address mentioned is that of the suit property and the phone number is exactly the same as mentioned on the business card of M/s Aashima Jewellery" i.e., `3901361. Respondent No. 2 has admitted the fact of doing business in the name of M/s Aashima Jewellery" which is also evident from the business card used by him having the address of the suit property and the telephone number `3901361 whereas he denied to have worked under the name and style of M/s R.R. Jewellers but the very fact is falsified by the evidence in the form of subscribers list of Delhi Sanchaar Sewa wherein the same telephone number, i.e., `3901361 has been given. Meaning thereby, Respondent No. 2 was doing business in the suit premises independently of the appellant herein.14. Undoubtedly, the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.15. In this regard, it is appropriate to quote a decision of this Court in Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held that when eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord. If the landlord prima-facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.16. Again, in Kala and Anr. v. Madho Parshad Vaidya, 1998(2) R.C.R.(Rent) 279 : (1998) 6 SCC 573 , this Court reiterated the very same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.17. In Vaishakhi Ram & Ors. v. Sanjeev Kumar Bhatiani 2008(2) R.C.R.(Civil) 202 : 2008(1) R.C.R.(Rent) 311 : 2008(2) Recent Apex Judgments (R.A.J.) 173 : (2008) 14 SCC 356 , it was held as under:-"21.It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. Reliance can be placed on the decision of this Court in Joginder Singh Sodhi v. Amar Kaur. Therefore, we are in full agreement with the High Court as well as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and Appellant 1 could not prove that it was not a case of sub-letting, the suit shop had been sub-let by Appellant 1 in favour of Appellants 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting."18. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case.19. In the present facts and circumstances of the case, we are of the opinion that the original owner-respondent No. 1 herein has proved beyond doubt that the property is in exclusive possession of the sub-tenant and the appellant herein has not been able to deny the claim of sub-tenancy in favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the appellant herein to the Respondent No. 2.Conclusion:-20.
### Response:
0
### Explanation:
12. A bare perusal of the visiting card of M/s Ashima Jewellery having the name of Respondent No. 2 clearly proves that thewas neither an employee nor was looking after the customers of the appellant herein in his absence but he was carrying on his personal business under such name. There is no point in denying the fact that why a tenant will allow a person, who is working under him, to print visiting cards in hisname for the property in question.13. Further, the other visiting card is having the name of "M/s R.R. Jewellers". The allegedhas denied the claim in the affidavit filed before the courts below that earlier he was doing the business in the name and style of M/s R.R. Jewellers. Thehas brought on record the list of subscribers issued by the Delhi Sanchaar Sewa (Pvt.) Ltd. wherein for R.R. Jewellers, the address mentioned is that of the suit property and the phone number is exactly the same as mentioned on the business card of M/s Aashima Jewellery" i.e., `3901361. Respondent No. 2 has admitted the fact of doing business in the name of M/s Aashima Jewellery" which is also evident from the business card used by him having the address of the suit property and the telephone number `3901361 whereas he denied to have worked under the name and style of M/s R.R. Jewellers but the very fact is falsified by the evidence in the form of subscribers list of Delhi Sanchaar Sewa wherein the same telephone number, i.e., `3901361 has been given. Meaning thereby, Respondent No. 2 was doing business in the suit premises independently of the appellant herein.14. Undoubtedly, the initial burden to prove that theis in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.In the present facts and circumstances of the case, we are of the opinion that the originalNo. 1 herein has proved beyond doubt that the property is in exclusive possession of theand the appellant herein has not been able to deny the claim ofin favour of Respondent No. 2. The absence of evidence and failure to discharge the onus lay heavy on appellant and there could be no presumption other than that the suit premises had been sublet and parted with possession by the appellant herein to the Respondent No. 2.
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Ashok Kumar Chatterjee Vs. State of Madhya Pradesh
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replied that Ravindra had gone to Bombay in search of some employment. The conduct of the appellant in giving this manifestly blatant false reply to PW 2s enquiry, spells out his guilty conscience. The number of letters namely Exs. P-13 to P-15, Exs. P-29 and P-31 written in Bengali and Hindi were seized from the house. These letters are proved to be in the handwriting of the appellant, as seen from the evidence of PW 22 and PW 23 who were the State Examiners of Questioned Documents. PW 2 who claims to have studied up to 3rd standard has also deposed that the writing of those letters are in the handwriting of the appellant. In fact the accused also did not deny his handwriting but would try to explain that those letters were got written under pressure brought by the police on him. In these letters which were not posted, the accused had confessed that he had murdered the deceased. There is one more clinching evidence connecting the appellant with the crime in question is the contents of the postcard (Ex. P-104). This postcard had been posted at Bhatapara on July 13, 1976 i. e. on the very same day of the suicidal death of Pritosh. Much argument was advanced on this postcard. According to the prosecution this postcard which was posted at Bhatapara on July 13, 1976 reached the appellants father on July 17, 1976 at Kalopur. This postcard is written in Bengali. PW 23 has testified that the writing in the postcard is that of the appellant. This Ex. P-104 is dated July 11, 1976. The learned counsel for the defence advanced his argument contending that since the postcard is dated July 11, 1976, the appellant should have been taken to the police custody even much earlier to July 13, 111976 and this letter was fabricated. We are unable to accept this contention. In fact, a similar argument was raised before the High Court which repelled the same. Admittedly Pritosh committed suicide on July 13, 1976. In the postcard there is reference to the death of Pritosh Therefore, it is evident that this postcard should have been written after the death of Pritosh and then posted. Presumably, the appellant would have put the date on the postcard as July 11, 1976 by mistake. In view of the surrounding circumstances and the contents found in the postcard we are in total agreement with the finding of the High Court that the appellant should have put the date by mistake, and hold that this argument of the learned counsel for the appellant is not acceptable. The contents of this letter clearly show that Ravindra was murdered by the appellant on June 10, 1976 and that the appellant coming to know about the suicide of his cousin brother, Pritosh had decided to surrender before the police and suffer the consequences. Though the appellant in general had stated that he was tortured by the police and pressurised to write certain letters and documents and to sign them, he when specifically questioned under Section 313 CPC answered that he did not know anything about those letters 36. The learned defence counsel in support of his contention that there was police torture would draw the attention of this Court to certain admissions of PW 2 in the cross-examination admitting that the police had harassed all of them and persistently enquired about the reason for Pritosh to commit suicide, and that the appellant on being arrested by the police was highly perplexed and all of them went on admitting what the police said. We have carefully scanned these admissions of PW 2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed out Pritosh committed suicide in very tragic circumstances by throwing himself before a running train only after PW 2 had approached the police by lodging Ex. P-82 and handing over two photographs of her son with the request to make an investigation about the missing of her son. Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the human form37. Hence we hold that this argument of the earned counsel does not merit consideration38. For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that this cold-blooded murder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of the High Court does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence.
|
0[ds]Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the humanhave carefully scanned these admissions of PW 2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed out Pritosh committed suicide in very tragic circumstances by throwing himself before a running train only after PW 2 had approached the police by lodging Ex.and handing over two photographs of her son with the request to make an investigation about the missing of her son.Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the humanform37. Hence we hold that this argument of the earned counsel does not merit consideration38. For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that thismurder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of the High Court does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence.
| 0 | 5,500 | 608 |
### 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:
replied that Ravindra had gone to Bombay in search of some employment. The conduct of the appellant in giving this manifestly blatant false reply to PW 2s enquiry, spells out his guilty conscience. The number of letters namely Exs. P-13 to P-15, Exs. P-29 and P-31 written in Bengali and Hindi were seized from the house. These letters are proved to be in the handwriting of the appellant, as seen from the evidence of PW 22 and PW 23 who were the State Examiners of Questioned Documents. PW 2 who claims to have studied up to 3rd standard has also deposed that the writing of those letters are in the handwriting of the appellant. In fact the accused also did not deny his handwriting but would try to explain that those letters were got written under pressure brought by the police on him. In these letters which were not posted, the accused had confessed that he had murdered the deceased. There is one more clinching evidence connecting the appellant with the crime in question is the contents of the postcard (Ex. P-104). This postcard had been posted at Bhatapara on July 13, 1976 i. e. on the very same day of the suicidal death of Pritosh. Much argument was advanced on this postcard. According to the prosecution this postcard which was posted at Bhatapara on July 13, 1976 reached the appellants father on July 17, 1976 at Kalopur. This postcard is written in Bengali. PW 23 has testified that the writing in the postcard is that of the appellant. This Ex. P-104 is dated July 11, 1976. The learned counsel for the defence advanced his argument contending that since the postcard is dated July 11, 1976, the appellant should have been taken to the police custody even much earlier to July 13, 111976 and this letter was fabricated. We are unable to accept this contention. In fact, a similar argument was raised before the High Court which repelled the same. Admittedly Pritosh committed suicide on July 13, 1976. In the postcard there is reference to the death of Pritosh Therefore, it is evident that this postcard should have been written after the death of Pritosh and then posted. Presumably, the appellant would have put the date on the postcard as July 11, 1976 by mistake. In view of the surrounding circumstances and the contents found in the postcard we are in total agreement with the finding of the High Court that the appellant should have put the date by mistake, and hold that this argument of the learned counsel for the appellant is not acceptable. The contents of this letter clearly show that Ravindra was murdered by the appellant on June 10, 1976 and that the appellant coming to know about the suicide of his cousin brother, Pritosh had decided to surrender before the police and suffer the consequences. Though the appellant in general had stated that he was tortured by the police and pressurised to write certain letters and documents and to sign them, he when specifically questioned under Section 313 CPC answered that he did not know anything about those letters 36. The learned defence counsel in support of his contention that there was police torture would draw the attention of this Court to certain admissions of PW 2 in the cross-examination admitting that the police had harassed all of them and persistently enquired about the reason for Pritosh to commit suicide, and that the appellant on being arrested by the police was highly perplexed and all of them went on admitting what the police said. We have carefully scanned these admissions of PW 2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed out Pritosh committed suicide in very tragic circumstances by throwing himself before a running train only after PW 2 had approached the police by lodging Ex. P-82 and handing over two photographs of her son with the request to make an investigation about the missing of her son. Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the human form37. Hence we hold that this argument of the earned counsel does not merit consideration38. For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that this cold-blooded murder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of the High Court does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence.
### Response:
0
### Explanation:
Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the humanhave carefully scanned these admissions of PW 2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed out Pritosh committed suicide in very tragic circumstances by throwing himself before a running train only after PW 2 had approached the police by lodging Ex.and handing over two photographs of her son with the request to make an investigation about the missing of her son.Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husbands abnormal sexual behaviour. Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the humanform37. Hence we hold that this argument of the earned counsel does not merit consideration38. For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that thismurder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of the High Court does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence.
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United India Insurance Co.Ltd Vs. Suresh K.K
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the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word `carried’ qualifies the owner of goods or his representative and not the goods carried. If goods are found inside the vehicle at the time of the accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of goods or the owner’s representative was travelling in that capacity. Chances of passengers or the insured raising false claims in this regard cannot be safe method to ascertain the intention of the Legislature. False claims can be disapproved by the insurer by adducing materials and evidence and also by raising appropriate contentions. In our view, such issues are matters of evidence and will not stand scrutiny while construing a beneficial provision intended to compensate the loss caused to innocent victims of motor accidents. The party who claims that the person who died or sustained injury as the owner of goods or the representative of the owner of the goods shall discharge the burden cast on him. Merely for the reason that the benefit granted will be misused, it will not be proper to give a narrow interpretation to the above provision. We, therefore, hold that the owner or the authorised representative need not invariably be shown to accompany the goods at the time the goods carriage meets with accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorised representative of the owner of the goods.” 8. Mr. Nandwani, learned Counsel appearing on behalf of the appellant would urge that the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that: 1. the vehicle in question being a goods vehicle, the driver could not bave allowed anybody to sit by his side;2. the Tribunal as also the High Court did not arrive at the finding that the claimant/respondent was the owner of goods particularly when no goods were found to have been carried therein;3 . on a plain reading of Sub-clause (i) of Clause (b) of the Sub-section 1 of Section 147, the words ‘carried in the vehicle” must be held to be qualifying “owner of the goods” or ‘his authorised representative’;4. Section 147(b)(i) reads as under:“(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.”5. Section 147 provides for mandatory insurance. The policy of insurance in terms of the said provision must be in relation to the person or classes of persons specified in the policy sought to be insured. The insurance would be against any liability which the insured incurs. 9. The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative.10. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision.11. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act No. 54 of 1994 was to widen the scope of the liability of the Insurance Company.12. It is now well-settled that the term ‘any person’ envisaged under the said provision shall not include any gratuitous passenger. National Insurance Co. Ltd. v. Baljit Kaur & Ors., I (2004) ACC 259 (SC)=I (2004) SLT 269=I (2004) CLT 257 (SC)=2004 (2) SCC 1. 13. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as an owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.14. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.15. The question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.8.1999, and further in view of the fact that the claimant was a Coolie-worker as to whether he would be in a position to realise the dues from the owner of the vehicle, we think not.16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.17. We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this Court dated 13.11.2006. 18.
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1[ds]The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative.10. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision.11. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act No. 54 of 1994 was to widen the scope of the liability of the Insurance Company.12. It is now well-settled that the term ‘anyenvisaged under the said provision shall not include any gratuitous passenger. National Insurance Co. Ltd. v. Baljit Kaur & Ors., I (2004) ACC 259 (SC)=I (2004) SLT 269=I (2004) CLT 257 (SC)=2004 (2) SCC 1. 13. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as an owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.14. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.15. The question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.8.1999, and further in view of the fact that the claimant was a Coolie-worker as to whether he would be in a position to realise the dues from the owner of the vehicle, we think not.16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.17. We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this Court dated
| 1 | 1,814 | 517 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word `carried’ qualifies the owner of goods or his representative and not the goods carried. If goods are found inside the vehicle at the time of the accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of goods or the owner’s representative was travelling in that capacity. Chances of passengers or the insured raising false claims in this regard cannot be safe method to ascertain the intention of the Legislature. False claims can be disapproved by the insurer by adducing materials and evidence and also by raising appropriate contentions. In our view, such issues are matters of evidence and will not stand scrutiny while construing a beneficial provision intended to compensate the loss caused to innocent victims of motor accidents. The party who claims that the person who died or sustained injury as the owner of goods or the representative of the owner of the goods shall discharge the burden cast on him. Merely for the reason that the benefit granted will be misused, it will not be proper to give a narrow interpretation to the above provision. We, therefore, hold that the owner or the authorised representative need not invariably be shown to accompany the goods at the time the goods carriage meets with accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorised representative of the owner of the goods.” 8. Mr. Nandwani, learned Counsel appearing on behalf of the appellant would urge that the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that: 1. the vehicle in question being a goods vehicle, the driver could not bave allowed anybody to sit by his side;2. the Tribunal as also the High Court did not arrive at the finding that the claimant/respondent was the owner of goods particularly when no goods were found to have been carried therein;3 . on a plain reading of Sub-clause (i) of Clause (b) of the Sub-section 1 of Section 147, the words ‘carried in the vehicle” must be held to be qualifying “owner of the goods” or ‘his authorised representative’;4. Section 147(b)(i) reads as under:“(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.”5. Section 147 provides for mandatory insurance. The policy of insurance in terms of the said provision must be in relation to the person or classes of persons specified in the policy sought to be insured. The insurance would be against any liability which the insured incurs. 9. The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative.10. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision.11. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act No. 54 of 1994 was to widen the scope of the liability of the Insurance Company.12. It is now well-settled that the term ‘any person’ envisaged under the said provision shall not include any gratuitous passenger. National Insurance Co. Ltd. v. Baljit Kaur & Ors., I (2004) ACC 259 (SC)=I (2004) SLT 269=I (2004) CLT 257 (SC)=2004 (2) SCC 1. 13. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as an owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.14. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.15. The question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.8.1999, and further in view of the fact that the claimant was a Coolie-worker as to whether he would be in a position to realise the dues from the owner of the vehicle, we think not.16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.17. We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this Court dated 13.11.2006. 18.
### Response:
1
### Explanation:
The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative.10. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision.11. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act No. 54 of 1994 was to widen the scope of the liability of the Insurance Company.12. It is now well-settled that the term ‘anyenvisaged under the said provision shall not include any gratuitous passenger. National Insurance Co. Ltd. v. Baljit Kaur & Ors., I (2004) ACC 259 (SC)=I (2004) SLT 269=I (2004) CLT 257 (SC)=2004 (2) SCC 1. 13. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as an owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.14. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.15. The question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.8.1999, and further in view of the fact that the claimant was a Coolie-worker as to whether he would be in a position to realise the dues from the owner of the vehicle, we think not.16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.17. We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this Court dated
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National Thermal Power Corporation Limited Vs. K.V. Rangaiah & Another
|
the writ petition namely, the appellant Corporation or the Electricity Board according to his choice. The appellant Corporation filed an appeal (Writ Appeal No. 678 of 1995) against the said judgment of the learned Single Judge. The Electricity Board did not assail the said judgment. The appeal of the appellant Corporation has been dismissed by a Division Bench of the High Court by the impugned judgment dated 26-7-1995. The learned Judges have held that the action of the appellant Corporation in drawing a line between employees who have served them for five continuous years or more and those who have come to them by transfer of service from other Central Government or State Government organisations but have not served with them for five years suffers from the vice of arbitrariness and that it is unfair to deny the benefits of the Scheme on the ground that one has served for a longer period and another has served for a shorter period. Feeling aggrieved by the said decision of the Division Bench of the High Court, the appellant Corporation has filed this appeal. 3. The relevant provision of the Scheme relating to eligibility of employees to avail the benefit of the Scheme is contained in para 2.1 which reads as under: "2.1 The Scheme will apply to the following categories of NTPC employees: (i) Employees who separate from the Company on account of retirement on attaining the age of superannuation or are separated by the Company on medical grounds: Provided that the employees concerned have completed a minimum qualifying period of ten years of continuous service in Central/State Government/Public Sector Undertaking, out of which a minimum five years shall be in NTPC. (ii) Board level appointees, on completion of their tenure." 4. Under clause (i) of para 2.1 it has been provided that the minimum qualifying period for an employee to be eligible for availing the benefit of the Scheme is ten years service. The said ten years service can also be in the Central/State Government / Public Sector Undertaking but out of the said service a minimum five years service has to be in the appellant Corporation. Respondent 1 fulfils the requirement of ten years service in a Central/State Government / Public Sector Undertaking since he was earlier employed with the Electricity Board. But he does not fulfil the second requirement regarding minimum five years service in the appellant Corporation. The submission of the learned counsel for Respondent 1 is that the imposition of this condition of five years minimum service in the appellant Corporation is violative of the right to equality guaranteed under Art. 14 of the Constitution and that it results in arbitrary and hostile discrimination between the same set of employees who retired from service of the appellant Corporation on or after 1-1-1986. Reliance has been placed by the learned counsel on the decisions of this Court in T. S. Thiruvengadam v. Secy, to Govt. of India (1993 (2) SCC 174 : 1993 (24) ATC 102); Indian Ex Services League v. Union of India (1991 (2) SCC 104 : 1991 SCC (L&S) 536); R.R. Bhanot v. Union of India (1994 (2) SCC 406 : 1994 SCC (L&S) 557) and Consumer Education and Research Centre v. Union of India (1995 (3) SCC 42 : AIR 1995 SC 922 ). 5. We have carefully considered the said submissions of the learned counsel in the light of the judgments referred to above but we are unable to accept the same. The requirement regarding five years minimum service in the appellant Corporation as prescribed in para 2.1 is one of the conditions of eligibility for availing the benefits under the Scheme. Since conditions of eligibility could validly be imposed while introducing the Scheme (which was introduced for the first time on 21-12-1989) we are unable to appreciate how the imposition of the aforementioned condition prescribing a minimum period of service in the appellant Corporation for being eligible to avail the benefits under the Scheme is violative of the right to equality guaranteed under Art.14 of the Constitution of India. We may, in this context, refer to the decision of this Court in Union of India v. Deoki Nandan Aggarwal (1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248). In that case the Court was dealing with para 2 of Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, which prescribes seven years service for a High Court Judge for the purpose of pension. The Allahabad High Court had held that the said provision discriminates between those who have completed seven years service and those who have not completed that much service. The said view of the High Court was reversed by this Court. It was held: "75. ... Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is so to say a qualification for eligibility. It is different from computation of pension. All those who satisfy that condition are eligible to get pension." 6. So also in the present case it can be said that prescribing a minimum period of five years service in the appellant Corporation before retirement on superannuation for being entitled to avail the benefit of the Scheme is a part of the Scheme itself and is a qualification for eligibility and it cannot be regarded as a classification. The decisions on which reliance have been placed by the learned counsel have no bearing on the facts of this case.7. The impugned judgment of the Division Bench of the High Court affirming the judgment of the learned Single Judge insofar as it holds that Respondent 1 is entitled to claim the benefit of the Scheme under the appellant Corporation cannot, therefore, be upheld and has to be set aside. The said decision insofar as it holds that the respondent can avail the post retirement medical facilities that are available in the Electricity Board is, however, not disturbed.
|
1[ds]The requirement regarding five years minimum service in the appellant Corporation as prescribed in para 2.1 is one of the conditions of eligibility for availing the benefits under the Scheme. Since conditions of eligibility could validly be imposed while introducing the Scheme (which was introduced for the first time onwe are unable to appreciate how the imposition of the aforementioned condition prescribing a minimum period of service in the appellant Corporation for being eligible to avail the benefits under the Scheme is violative of the right to equality guaranteed under Art.14 of the Constitution of India. We may, in this context, refer to the decision of this Court in Union of India v. Deoki Nandan Aggarwal (1992 Supp (1) SCC 323 : 1992 SCC248). In that case the Court was dealing with para 2 of Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, which prescribes seven years service for a High Court Judge for the purpose of pension. The Allahabad High Court had held that the said provision discriminates between those who have completed seven years service and those who have not completed that much service.So also in the present case it can be said that prescribing a minimum period of five years service in the appellant Corporation before retirement on superannuation for being entitled to avail the benefit of the Scheme is a part of the Scheme itself and is a qualification for eligibility and it cannot be regarded as a classification. The decisions on which reliance have been placed by the learned counsel have no bearing on the facts of this case.7. The impugned judgment of the Division Bench of the High Court affirming the judgment of the learned Single Judge insofar as it holds that Respondent 1 is entitled to claim the benefit of the Scheme under the appellant Corporation cannot, therefore, be upheld and has to be set aside. The said decision insofar as it holds that the respondent can avail the post retirement medical facilities that are available in the Electricity Board is, however, not disturbed.o also in the present case it can be said that prescribing a minimum period of five years service in the appellant Corporation before retirement on superannuation for being entitled to avail the benefit of the Scheme is a part of the Scheme itself and is a qualification for eligibility and it cannot be regarded as a classification. The decisions on which reliance have been placed by the learned counsel have no bearing on the facts of this case.
| 1 | 1,471 | 458 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
the writ petition namely, the appellant Corporation or the Electricity Board according to his choice. The appellant Corporation filed an appeal (Writ Appeal No. 678 of 1995) against the said judgment of the learned Single Judge. The Electricity Board did not assail the said judgment. The appeal of the appellant Corporation has been dismissed by a Division Bench of the High Court by the impugned judgment dated 26-7-1995. The learned Judges have held that the action of the appellant Corporation in drawing a line between employees who have served them for five continuous years or more and those who have come to them by transfer of service from other Central Government or State Government organisations but have not served with them for five years suffers from the vice of arbitrariness and that it is unfair to deny the benefits of the Scheme on the ground that one has served for a longer period and another has served for a shorter period. Feeling aggrieved by the said decision of the Division Bench of the High Court, the appellant Corporation has filed this appeal. 3. The relevant provision of the Scheme relating to eligibility of employees to avail the benefit of the Scheme is contained in para 2.1 which reads as under: "2.1 The Scheme will apply to the following categories of NTPC employees: (i) Employees who separate from the Company on account of retirement on attaining the age of superannuation or are separated by the Company on medical grounds: Provided that the employees concerned have completed a minimum qualifying period of ten years of continuous service in Central/State Government/Public Sector Undertaking, out of which a minimum five years shall be in NTPC. (ii) Board level appointees, on completion of their tenure." 4. Under clause (i) of para 2.1 it has been provided that the minimum qualifying period for an employee to be eligible for availing the benefit of the Scheme is ten years service. The said ten years service can also be in the Central/State Government / Public Sector Undertaking but out of the said service a minimum five years service has to be in the appellant Corporation. Respondent 1 fulfils the requirement of ten years service in a Central/State Government / Public Sector Undertaking since he was earlier employed with the Electricity Board. But he does not fulfil the second requirement regarding minimum five years service in the appellant Corporation. The submission of the learned counsel for Respondent 1 is that the imposition of this condition of five years minimum service in the appellant Corporation is violative of the right to equality guaranteed under Art. 14 of the Constitution and that it results in arbitrary and hostile discrimination between the same set of employees who retired from service of the appellant Corporation on or after 1-1-1986. Reliance has been placed by the learned counsel on the decisions of this Court in T. S. Thiruvengadam v. Secy, to Govt. of India (1993 (2) SCC 174 : 1993 (24) ATC 102); Indian Ex Services League v. Union of India (1991 (2) SCC 104 : 1991 SCC (L&S) 536); R.R. Bhanot v. Union of India (1994 (2) SCC 406 : 1994 SCC (L&S) 557) and Consumer Education and Research Centre v. Union of India (1995 (3) SCC 42 : AIR 1995 SC 922 ). 5. We have carefully considered the said submissions of the learned counsel in the light of the judgments referred to above but we are unable to accept the same. The requirement regarding five years minimum service in the appellant Corporation as prescribed in para 2.1 is one of the conditions of eligibility for availing the benefits under the Scheme. Since conditions of eligibility could validly be imposed while introducing the Scheme (which was introduced for the first time on 21-12-1989) we are unable to appreciate how the imposition of the aforementioned condition prescribing a minimum period of service in the appellant Corporation for being eligible to avail the benefits under the Scheme is violative of the right to equality guaranteed under Art.14 of the Constitution of India. We may, in this context, refer to the decision of this Court in Union of India v. Deoki Nandan Aggarwal (1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248). In that case the Court was dealing with para 2 of Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, which prescribes seven years service for a High Court Judge for the purpose of pension. The Allahabad High Court had held that the said provision discriminates between those who have completed seven years service and those who have not completed that much service. The said view of the High Court was reversed by this Court. It was held: "75. ... Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is so to say a qualification for eligibility. It is different from computation of pension. All those who satisfy that condition are eligible to get pension." 6. So also in the present case it can be said that prescribing a minimum period of five years service in the appellant Corporation before retirement on superannuation for being entitled to avail the benefit of the Scheme is a part of the Scheme itself and is a qualification for eligibility and it cannot be regarded as a classification. The decisions on which reliance have been placed by the learned counsel have no bearing on the facts of this case.7. The impugned judgment of the Division Bench of the High Court affirming the judgment of the learned Single Judge insofar as it holds that Respondent 1 is entitled to claim the benefit of the Scheme under the appellant Corporation cannot, therefore, be upheld and has to be set aside. The said decision insofar as it holds that the respondent can avail the post retirement medical facilities that are available in the Electricity Board is, however, not disturbed.
### Response:
1
### Explanation:
The requirement regarding five years minimum service in the appellant Corporation as prescribed in para 2.1 is one of the conditions of eligibility for availing the benefits under the Scheme. Since conditions of eligibility could validly be imposed while introducing the Scheme (which was introduced for the first time onwe are unable to appreciate how the imposition of the aforementioned condition prescribing a minimum period of service in the appellant Corporation for being eligible to avail the benefits under the Scheme is violative of the right to equality guaranteed under Art.14 of the Constitution of India. We may, in this context, refer to the decision of this Court in Union of India v. Deoki Nandan Aggarwal (1992 Supp (1) SCC 323 : 1992 SCC248). In that case the Court was dealing with para 2 of Part I of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, which prescribes seven years service for a High Court Judge for the purpose of pension. The Allahabad High Court had held that the said provision discriminates between those who have completed seven years service and those who have not completed that much service.So also in the present case it can be said that prescribing a minimum period of five years service in the appellant Corporation before retirement on superannuation for being entitled to avail the benefit of the Scheme is a part of the Scheme itself and is a qualification for eligibility and it cannot be regarded as a classification. The decisions on which reliance have been placed by the learned counsel have no bearing on the facts of this case.7. The impugned judgment of the Division Bench of the High Court affirming the judgment of the learned Single Judge insofar as it holds that Respondent 1 is entitled to claim the benefit of the Scheme under the appellant Corporation cannot, therefore, be upheld and has to be set aside. The said decision insofar as it holds that the respondent can avail the post retirement medical facilities that are available in the Electricity Board is, however, not disturbed.o also in the present case it can be said that prescribing a minimum period of five years service in the appellant Corporation before retirement on superannuation for being entitled to avail the benefit of the Scheme is a part of the Scheme itself and is a qualification for eligibility and it cannot be regarded as a classification. The decisions on which reliance have been placed by the learned counsel have no bearing on the facts of this case.
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M/S. Tata Iron & Steel Co. Ltd Vs. State Of Jharkhand
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not the case of the respondent-State that in fact the product manufactured by the appellant in the new unit is now CRM. It could not have been the case either because in our opinion a careful reading of the letter of the Director of Technical Development, Bihar, dated 9.8.2000 wherein he has referred to a team of Technical Officers who visited the unit of the appellant, had reported that the commercial production was CRM and on verification, production of the same was found to have started hence they recommended that a declaration be given in regard to the same w.e.f. 1.8.2000. These Technical Officers who we must presume have seen the product, have nowhere stated that the products manufactured were not CRM nor has the respondent-State repudiated this letter or challenged the correctness of the same. 19. As noticed above, even the Commissioner who initiated suo motu revision, did not disagree with the finding of the Joint Commissioner given on facts that the product is CRM. He only proceeded on a technicality relying on an erroneous judgment. In the writ petition filed by the appellant the State has filed a counter affidavit. Even in the counter affidavit the factual aspect of the product being CRM is not questioned nor do we find any argument addressed on behalf of the respondent-State before the High Court that the product manufactured by the appellant in its new unit is not CRM. It is for the first time the High Court having come to the conclusion that the finding of the Commissioner based on the judgment of this Court in Telengana Steel (supra) is erroneous, on its own proceeded to examine the material available on facts to establish whether the product manufactured by the appellant in its new unit is CRM or HRM. Even the High Court on such material that was available before it did not come to a definite conclusion that the finding of the Joint Commissioner was erroneous but it proceeded to weigh the quantity of evidence and thought it more prudent to remand the matter to take more evidence in this regard. We think in a writ petition filed under Article 226 or 227, the High Court ought to have done such an exercise. 20. Mr. Altaf Ahmad, learned senior counsel contended that the finding of the Joint Commissioner in regard to the nature of product only refers to certain literature produced by the appellant and certain feasibility report, project data and the correspondence between the Government of Bihar and the appellant. This by itself according to learned counsel, would not in fact indicate that the actual product that is manufactured by the appellant is CRM. He submitted that the appellant ought to have either by summoning the officers to the site or by other materials established that the new unit produced only CRM and not HRM. 21. We are unable to accept this argument either. First of all, as noticed above, it is not the case of the State that the product manufactured by the appellant in its new unit is not CRM. It is not the case of the State that the existing unit either by its machinery or by its process is capable of making HRM and not CRM or is capable of manufacturing both. Of course, if such an issue were to be raised the burden would have been on the appellant to establish the same. When such an issue is not raised it is not necessary for the appellant to establish that fact by any such intrinsic evidence. The material produced before the Joint Commissioner was in our opinion sufficient to decide whether the product manufactured by the appellant is CRM or not and the said Joint Commissioner having given a positive finding and that finding having not been interfered with by the Commissioner, we think the High Court erred in remanding the matter for fresh inquiry. 22. It is true that normally as against an order of remand this Court hesitates to interfere since there is always another opportunity for an aggrieved party to establish its case. But in this case we should notice the decision to establish an industrial unit was initiated by the appellant as far back as in the year 1997. Based on a promise made in the industrial policy of the State of Bihar, at every stage the appellants tried to verify and confirm whether they are entitled to the benefit of exemption or not and they were assured of that exemption. It is based on these assurance that the appellant invested a huge sum of money which according to the appellant is to the tune of Rs.2,000 crore but the State says it may be to the tune of Rs.1,400 crore. Whatever may be the figure, the fact still remains that the appellants have invested huge sums of money in installing its new industrial unit. At every stage of the construction, progress and installation of the machineries, the concerned Government/authorities were informed and at no point of time it was suspected that the new unit was going to manufacture HRM. The process of manufacturing HRM and CRM as could be seen from the experts opinion are totally different and the material on record also shows that the plant design for a new unit is for the purpose of manufacturing CRM. These factors coupled with the fact that at no stage of the proceedings which culminated in the judgment of the High Court, the respondent-State had questioned this fact except for the technical ground taken by the Joint Commissioner which is found to be erroneous, we find ends of justice would not be served by remanding the matter for further inquiry. 23. We are convinced that the issue before the High Court was not whether in fact the new unit of the appellant manufactures HRM or CRM. That being the case, the High Court ought not to have raised the issue suo motu and remanded the matter to the Commissioner.
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1[ds]18. Having heard learned counsel for the parties, we think in the facts and circumstances of this case, the High Court was in error in remanding the matter to the Commissioner to decide the question of fact which in our opinion was already conclusively decided by the Joint Commissioner and not disagreed on facts by the Commissioner. In this process, if we see from the narration of facts recorded hereinabove that right from the beginning, it is the case of the appellant that they wanted to establish a new unit for the manufacture of CRM. The correspondence also shows at every stage even the State and the concerned Department accepted the proposal for the said purpose. No case has made out, leave alone an attempt on behalf of the State has been made that the appellant misled the Department or by any sort of camouflage tried to put up a plant which only manufactures HRM. As a matter of fact, it was not the case of thee that in fact the product manufactured by the appellant in the new unit is now CRM. It could not have been the case either because in our opinion a careful reading of the letter of the Director of Technical Development, Bihar, dated 9.8.2000 wherein he has referred to a team of Technical Officers who visited the unit of the appellant, had reported that the commercial production was CRM and on verification, production of the same was found to have started hence they recommended that a declaration be given in regard to the same w.e.f. 1.8.2000. These Technical Officers who we must presume have seen the product, have nowhere stated that the products manufactured were not CRM nor has thee repudiated this letter or challenged the correctness of the same19. As noticed above, even the Commissioner who initiated suo motu revision, did not disagree with the finding of the Joint Commissioner given on facts that the product is CRM. He only proceeded on a technicality relying on an erroneous judgment. In the writ petition filed by the appellant the State has filed a counter affidavit. Even in the counter affidavit the factual aspect of the product being CRM is not questioned nor do we find any argument addressed on behalf of thee before the High Court that the product manufactured by the appellant in its new unit is not CRM. It is for the first time the High Court having come to the conclusion that the finding of the Commissioner based on the judgment of this Court in Telengana Steel (supra) is erroneous, on its own proceeded to examine the material available on facts to establish whether the product manufactured by the appellant in its new unit is CRM or HRM. Even the High Court on such material that was available before it did not come to a definite conclusion that the finding of the Joint Commissioner was erroneous but it proceeded to weigh the quantity of evidence and thought it more prudent to remand the matter to take more evidence in this regard. We think in a writ petition filed under Article 226 or 227, the High Court ought to have done such an exercise21. We are unable to accept this argument either. First of all, as noticed above, it is not the case of the State that the product manufactured by the appellant in its new unit is not CRM. It is not the case of the State that the existing unit either by its machinery or by its process is capable of making HRM and not CRM or is capable of manufacturing both. Of course, if such an issue were to be raised the burden would have been on the appellant to establish the same. When such an issue is not raised it is not necessary for the appellant to establish that fact by any such intrinsic evidence. The material produced before the Joint Commissioner was in our opinion sufficient to decide whether the product manufactured by the appellant is CRM or not and the said Joint Commissioner having given a positive finding and that finding having not been interfered with by the Commissioner, we think the High Court erred in remanding the matter for fresh inquiry22. It is true that normally as against an order of remand this Court hesitates to interfere since there is always another opportunity for an aggrieved party to establish its case. But in this case we should notice the decision to establish an industrial unit was initiated by the appellant as far back as in the year 1997. Based on a promise made in the industrial policy of the State of Bihar, at every stage the appellants tried to verify and confirm whether they are entitled to the benefit of exemption or not and they were assured of that exemption. It is based on these assurance that the appellant invested a huge sum of money which according to the appellant is to the tune of Rs.2,000 crore but the State says it may be to the tune of Rs.1,400 crore. Whatever may be the figure, the fact still remains that the appellants have invested huge sums of money in installing its new industrial unit. At every stage of the construction, progress and installation of the machineries, the concerned Government/authorities were informed and at no point of time it was suspected that the new unit was going to manufacture HRM. The process of manufacturing HRM and CRM as could be seen from the experts opinion are totally different and the material on record also shows that the plant design for a new unit is for the purpose of manufacturing CRM. These factors coupled with the fact that at no stage of the proceedings which culminated in the judgment of the High Court, thee had questioned this fact except for the technical ground taken by the Joint Commissioner which is found to be erroneous, we find ends of justice would not be served by remanding the matter for further inquiry23. We are convinced that the issue before the High Court was not whether in fact the new unit of the appellant manufactures HRM or CRM. That being the case, the High Court ought not to have raised the issue suo motu and remanded the matter to the Commissioner.
| 1 | 4,269 | 1,115 |
### 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:
not the case of the respondent-State that in fact the product manufactured by the appellant in the new unit is now CRM. It could not have been the case either because in our opinion a careful reading of the letter of the Director of Technical Development, Bihar, dated 9.8.2000 wherein he has referred to a team of Technical Officers who visited the unit of the appellant, had reported that the commercial production was CRM and on verification, production of the same was found to have started hence they recommended that a declaration be given in regard to the same w.e.f. 1.8.2000. These Technical Officers who we must presume have seen the product, have nowhere stated that the products manufactured were not CRM nor has the respondent-State repudiated this letter or challenged the correctness of the same. 19. As noticed above, even the Commissioner who initiated suo motu revision, did not disagree with the finding of the Joint Commissioner given on facts that the product is CRM. He only proceeded on a technicality relying on an erroneous judgment. In the writ petition filed by the appellant the State has filed a counter affidavit. Even in the counter affidavit the factual aspect of the product being CRM is not questioned nor do we find any argument addressed on behalf of the respondent-State before the High Court that the product manufactured by the appellant in its new unit is not CRM. It is for the first time the High Court having come to the conclusion that the finding of the Commissioner based on the judgment of this Court in Telengana Steel (supra) is erroneous, on its own proceeded to examine the material available on facts to establish whether the product manufactured by the appellant in its new unit is CRM or HRM. Even the High Court on such material that was available before it did not come to a definite conclusion that the finding of the Joint Commissioner was erroneous but it proceeded to weigh the quantity of evidence and thought it more prudent to remand the matter to take more evidence in this regard. We think in a writ petition filed under Article 226 or 227, the High Court ought to have done such an exercise. 20. Mr. Altaf Ahmad, learned senior counsel contended that the finding of the Joint Commissioner in regard to the nature of product only refers to certain literature produced by the appellant and certain feasibility report, project data and the correspondence between the Government of Bihar and the appellant. This by itself according to learned counsel, would not in fact indicate that the actual product that is manufactured by the appellant is CRM. He submitted that the appellant ought to have either by summoning the officers to the site or by other materials established that the new unit produced only CRM and not HRM. 21. We are unable to accept this argument either. First of all, as noticed above, it is not the case of the State that the product manufactured by the appellant in its new unit is not CRM. It is not the case of the State that the existing unit either by its machinery or by its process is capable of making HRM and not CRM or is capable of manufacturing both. Of course, if such an issue were to be raised the burden would have been on the appellant to establish the same. When such an issue is not raised it is not necessary for the appellant to establish that fact by any such intrinsic evidence. The material produced before the Joint Commissioner was in our opinion sufficient to decide whether the product manufactured by the appellant is CRM or not and the said Joint Commissioner having given a positive finding and that finding having not been interfered with by the Commissioner, we think the High Court erred in remanding the matter for fresh inquiry. 22. It is true that normally as against an order of remand this Court hesitates to interfere since there is always another opportunity for an aggrieved party to establish its case. But in this case we should notice the decision to establish an industrial unit was initiated by the appellant as far back as in the year 1997. Based on a promise made in the industrial policy of the State of Bihar, at every stage the appellants tried to verify and confirm whether they are entitled to the benefit of exemption or not and they were assured of that exemption. It is based on these assurance that the appellant invested a huge sum of money which according to the appellant is to the tune of Rs.2,000 crore but the State says it may be to the tune of Rs.1,400 crore. Whatever may be the figure, the fact still remains that the appellants have invested huge sums of money in installing its new industrial unit. At every stage of the construction, progress and installation of the machineries, the concerned Government/authorities were informed and at no point of time it was suspected that the new unit was going to manufacture HRM. The process of manufacturing HRM and CRM as could be seen from the experts opinion are totally different and the material on record also shows that the plant design for a new unit is for the purpose of manufacturing CRM. These factors coupled with the fact that at no stage of the proceedings which culminated in the judgment of the High Court, the respondent-State had questioned this fact except for the technical ground taken by the Joint Commissioner which is found to be erroneous, we find ends of justice would not be served by remanding the matter for further inquiry. 23. We are convinced that the issue before the High Court was not whether in fact the new unit of the appellant manufactures HRM or CRM. That being the case, the High Court ought not to have raised the issue suo motu and remanded the matter to the Commissioner.
### Response:
1
### Explanation:
disagreed on facts by the Commissioner. In this process, if we see from the narration of facts recorded hereinabove that right from the beginning, it is the case of the appellant that they wanted to establish a new unit for the manufacture of CRM. The correspondence also shows at every stage even the State and the concerned Department accepted the proposal for the said purpose. No case has made out, leave alone an attempt on behalf of the State has been made that the appellant misled the Department or by any sort of camouflage tried to put up a plant which only manufactures HRM. As a matter of fact, it was not the case of thee that in fact the product manufactured by the appellant in the new unit is now CRM. It could not have been the case either because in our opinion a careful reading of the letter of the Director of Technical Development, Bihar, dated 9.8.2000 wherein he has referred to a team of Technical Officers who visited the unit of the appellant, had reported that the commercial production was CRM and on verification, production of the same was found to have started hence they recommended that a declaration be given in regard to the same w.e.f. 1.8.2000. These Technical Officers who we must presume have seen the product, have nowhere stated that the products manufactured were not CRM nor has thee repudiated this letter or challenged the correctness of the same19. As noticed above, even the Commissioner who initiated suo motu revision, did not disagree with the finding of the Joint Commissioner given on facts that the product is CRM. He only proceeded on a technicality relying on an erroneous judgment. In the writ petition filed by the appellant the State has filed a counter affidavit. Even in the counter affidavit the factual aspect of the product being CRM is not questioned nor do we find any argument addressed on behalf of thee before the High Court that the product manufactured by the appellant in its new unit is not CRM. It is for the first time the High Court having come to the conclusion that the finding of the Commissioner based on the judgment of this Court in Telengana Steel (supra) is erroneous, on its own proceeded to examine the material available on facts to establish whether the product manufactured by the appellant in its new unit is CRM or HRM. Even the High Court on such material that was available before it did not come to a definite conclusion that the finding of the Joint Commissioner was erroneous but it proceeded to weigh the quantity of evidence and thought it more prudent to remand the matter to take more evidence in this regard. We think in a writ petition filed under Article 226 or 227, the High Court ought to have done such an exercise21. We are unable to accept this argument either. First of all, as noticed above, it is not the case of the State that the product manufactured by the appellant in its new unit is not CRM. It is not the case of the State that the existing unit either by its machinery or by its process is capable of making HRM and not CRM or is capable of manufacturing both. Of course, if such an issue were to be raised the burden would have been on the appellant to establish the same. When such an issue is not raised it is not necessary for the appellant to establish that fact by any such intrinsic evidence. The material produced before the Joint Commissioner was in our opinion sufficient to decide whether the product manufactured by the appellant is CRM or not and the said Joint Commissioner having given a positive finding and that finding having not been interfered with by the Commissioner, we think the High Court erred in remanding the matter for fresh inquiry22. It is true that normally as against an order of remand this Court hesitates to interfere since there is always another opportunity for an aggrieved party to establish its case. But in this case we should notice the decision to establish an industrial unit was initiated by the appellant as far back as in the year 1997. Based on a promise made in the industrial policy of the State of Bihar, at every stage the appellants tried to verify and confirm whether they are entitled to the benefit of exemption or not and they were assured of that exemption. It is based on these assurance that the appellant invested a huge sum of money which according to the appellant is to the tune of Rs.2,000 crore but the State says it may be to the tune of Rs.1,400 crore. Whatever may be the figure, the fact still remains that the appellants have invested huge sums of money in installing its new industrial unit. At every stage of the construction, progress and installation of the machineries, the concerned Government/authorities were informed and at no point of time it was suspected that the new unit was going to manufacture HRM. The process of manufacturing HRM and CRM as could be seen from the experts opinion are totally different and the material on record also shows that the plant design for a new unit is for the purpose of manufacturing CRM. These factors coupled with the fact that at no stage of the proceedings which culminated in the judgment of the High Court, thee had questioned this fact except for the technical ground taken by the Joint Commissioner which is found to be erroneous, we find ends of justice would not be served by remanding the matter for further inquiry23. We are convinced that the issue before the High Court was not whether in fact the new unit of the appellant manufactures HRM or CRM. That being the case, the High Court ought not to have raised the issue suo motu and remanded the matter to the Commissioner.
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Commissioner of Cus. (Preventive), Mumbai Vs. Creotex Industries
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1. This civil appeal Under Section 130(E) of the Customs Act, 1962 filed by the Department is directed against the Final Order No. C-I/2836/WZB/2001, dated 17-9-2001 passed by Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai [2003 (160) E.L.T. 826 (Tribunal)], by which the Respondent herein succeeded only on the ground that SCN contained bald allegations of suppression. The issue for consideration before the Tribunal was whether the import of raw material by the Assessee duty free under the Pass Book Scheme and sale thereof in open market without utilizing it in the manufacture in their own factory violated Notification No. 117/88-COS., dated 30-3-1988 read with Para 281 of Exim Policy 1988-91. 2. The facts giving rise to this civil appeal are as follows: On basis of information, officers of Customs Department (Preventive wing) carried out the search in the office of one Shri N.D. Pallaria who was the Director of M/s. Giriraj Impex Pvt. Ltd. During the search incriminating documents showing transactions with regard to the sale of duty free raw material imported under the Pass Book Scheme were seized. During the investigation statements of the partners of the Assessee firm as well as of Customs House Agent (CHA) (Transporters) were also recorded. On the basis of the said investigation show cause notice was issued on 8th August, 1994 in which it was alleged, inter alia, that fifteen out of twenty one consignments imported were sold by the Assessee in the open market instead of actual consumption in their factory at Jaipur. In the show cause notice it was further alleged that fifteen consignments were sold to five parties whose names are given as M/s. Jallan Woolen Industries, M/s. Nik Polymer International, M/s. Ajanta Printers, M/s. Amar Dyes and Printers and M/s. Vinay Dye Chem Corporation. That, there was no sale to Actual Users as the said firms, namely, M/s. Ajanta Printers, M/s. Amar Dyes and Printers and M/s. Vinay Dyed Chem Corporation were non-existent. 3. Having gone through the records of this case we are satisfied that the status of the above three firms remains in doubt. The Commissioner came to the conclusion that said three firms claimed to be SSI Units but they had no addresses from which they operated. 4. The basic issue which arose for determination in this civil appeal before the Commissioner consisted of two-fold points, namely, whether the said three firms were genuine or bogus, particularly in the absence of proper addresses. Secondly, whether the Department on the facts and circumstances of this case was entitled to invoke the extended period of limitation on the ground of suppression as alleged. In this connection the Assessee herein contended before the Commissioner that they had sold the goods through Shri Pallaria the Commission agent (who was also a Director of Giriraj Impex), bona fide. That, the Respondent had placed before the Assessee the requisite registration certificates given by the three entities. According to the Assessee the said certificates showed that the three entities were registered as SSI units and therefore the Assessee had acted bona fide. 5. Basically two points arise for determination which have not been examined properly by the Commissioner, namely, whether the three entities are genuine or bogus and whether the Assessee has acted bona fide on the basis of SSI registration certificates produced by Shri Pallaria - the commission agent. The Commissioner should also have decided whether there was any connection between the Assessee and the other Company in which Shri Pallaria was the Director. 6. In the present case the demand is of about Rupees twenty five lakhs. That calculation is based on the CIF value (import value).
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1[ds]3. Having gone through the records of this case we are satisfied that the status of the above three firms remains in doubt. The Commissioner came to the conclusion that said three firms claimed to be SSI Units but they had no addresses from which they operated.4. The basic issue which arose for determination in this civil appeal before the Commissioner consisted of two-fold points, namely, whether the said three firms were genuine or bogus, particularly in the absence of proper addresses. Secondly, whether the Department on the facts and circumstances of this case was entitled to invoke the extended period of limitation on the ground of suppression as alleged. In this connection the Assessee herein contended before the Commissioner that they had sold the goods through Shri Pallaria the Commission agent (who was also a Director of Giriraj Impex), bona fide. That, the Respondent had placed before the Assessee the requisite registration certificates given by the three entities. According to the Assessee the said certificates showed that the three entities were registered as SSI units and therefore the Assessee had acted bona fide.5. Basically two points arise for determination which have not been examined properly by the Commissioner, namely, whether the three entities are genuine or bogus and whether the Assessee has acted bona fide on the basis of SSI registration certificates produced by Shri Pallaria - the commission agent. The Commissioner should also have decided whether there was any connection between the Assessee and the other Company in which Shri Pallaria was the Director.6. In the present case the demand is of about Rupees twenty five lakhs. That calculation is based on the CIF value (import value).
| 1 | 696 | 307 |
### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
1. This civil appeal Under Section 130(E) of the Customs Act, 1962 filed by the Department is directed against the Final Order No. C-I/2836/WZB/2001, dated 17-9-2001 passed by Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai [2003 (160) E.L.T. 826 (Tribunal)], by which the Respondent herein succeeded only on the ground that SCN contained bald allegations of suppression. The issue for consideration before the Tribunal was whether the import of raw material by the Assessee duty free under the Pass Book Scheme and sale thereof in open market without utilizing it in the manufacture in their own factory violated Notification No. 117/88-COS., dated 30-3-1988 read with Para 281 of Exim Policy 1988-91. 2. The facts giving rise to this civil appeal are as follows: On basis of information, officers of Customs Department (Preventive wing) carried out the search in the office of one Shri N.D. Pallaria who was the Director of M/s. Giriraj Impex Pvt. Ltd. During the search incriminating documents showing transactions with regard to the sale of duty free raw material imported under the Pass Book Scheme were seized. During the investigation statements of the partners of the Assessee firm as well as of Customs House Agent (CHA) (Transporters) were also recorded. On the basis of the said investigation show cause notice was issued on 8th August, 1994 in which it was alleged, inter alia, that fifteen out of twenty one consignments imported were sold by the Assessee in the open market instead of actual consumption in their factory at Jaipur. In the show cause notice it was further alleged that fifteen consignments were sold to five parties whose names are given as M/s. Jallan Woolen Industries, M/s. Nik Polymer International, M/s. Ajanta Printers, M/s. Amar Dyes and Printers and M/s. Vinay Dye Chem Corporation. That, there was no sale to Actual Users as the said firms, namely, M/s. Ajanta Printers, M/s. Amar Dyes and Printers and M/s. Vinay Dyed Chem Corporation were non-existent. 3. Having gone through the records of this case we are satisfied that the status of the above three firms remains in doubt. The Commissioner came to the conclusion that said three firms claimed to be SSI Units but they had no addresses from which they operated. 4. The basic issue which arose for determination in this civil appeal before the Commissioner consisted of two-fold points, namely, whether the said three firms were genuine or bogus, particularly in the absence of proper addresses. Secondly, whether the Department on the facts and circumstances of this case was entitled to invoke the extended period of limitation on the ground of suppression as alleged. In this connection the Assessee herein contended before the Commissioner that they had sold the goods through Shri Pallaria the Commission agent (who was also a Director of Giriraj Impex), bona fide. That, the Respondent had placed before the Assessee the requisite registration certificates given by the three entities. According to the Assessee the said certificates showed that the three entities were registered as SSI units and therefore the Assessee had acted bona fide. 5. Basically two points arise for determination which have not been examined properly by the Commissioner, namely, whether the three entities are genuine or bogus and whether the Assessee has acted bona fide on the basis of SSI registration certificates produced by Shri Pallaria - the commission agent. The Commissioner should also have decided whether there was any connection between the Assessee and the other Company in which Shri Pallaria was the Director. 6. In the present case the demand is of about Rupees twenty five lakhs. That calculation is based on the CIF value (import value).
### Response:
1
### Explanation:
3. Having gone through the records of this case we are satisfied that the status of the above three firms remains in doubt. The Commissioner came to the conclusion that said three firms claimed to be SSI Units but they had no addresses from which they operated.4. The basic issue which arose for determination in this civil appeal before the Commissioner consisted of two-fold points, namely, whether the said three firms were genuine or bogus, particularly in the absence of proper addresses. Secondly, whether the Department on the facts and circumstances of this case was entitled to invoke the extended period of limitation on the ground of suppression as alleged. In this connection the Assessee herein contended before the Commissioner that they had sold the goods through Shri Pallaria the Commission agent (who was also a Director of Giriraj Impex), bona fide. That, the Respondent had placed before the Assessee the requisite registration certificates given by the three entities. According to the Assessee the said certificates showed that the three entities were registered as SSI units and therefore the Assessee had acted bona fide.5. Basically two points arise for determination which have not been examined properly by the Commissioner, namely, whether the three entities are genuine or bogus and whether the Assessee has acted bona fide on the basis of SSI registration certificates produced by Shri Pallaria - the commission agent. The Commissioner should also have decided whether there was any connection between the Assessee and the other Company in which Shri Pallaria was the Director.6. In the present case the demand is of about Rupees twenty five lakhs. That calculation is based on the CIF value (import value).
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Pannalal Nandlal Bhandari Vs. The Commissioner Of Income-Tax, Bombay City, Bombay
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the Constitution, this appeal is preferred by the appellant against the order of the High Court.3. The only question which falls to be determined in this appeal is whether the proceedings for assessment were commenced within the period of limitation prescribed for serving notice of assessment under section 34(1)(a) of the Act. At the material time, by S. 34(1)(a), the Income-tax Officer was invested with power amongst others to serve at any time within eight years from the end of any year of assessment notice of assessment if he had reason to believe that income, profits or gains had escaped assessment by reason of omission or failure on the part of the assessee to make a return of his income under S. 22 for that year, or to disclose fully and truly all material facts necessary for his assessment of that year. In those cases where the Income-tax Officer had in consequence of information in his possession reason to believe that income, profits or gains had escaped assessment even though there was no omission or failure as mentioned in cl. (a), he could under cl. (b) within four years from the end of the year of assessment serve a notice of assessment. Admittedly the notices issued by the Income-tax Officer for the years in question were issued within eight years from the end of the years of assessment and if cl. (1)(a) of S. 34 applied, the assessment was not barred by the law of limitation. But the appellant contended that the notices for assessment were, even though he had not made a return of his income for the years in question, governed not by cl. (1)(a) of S. 34, but by cl. (1)(b) of S. 34. He contended that being a resident outside the taxable territory in the years of assessment, a general notice under S. 22(1) did not give rise to a liability to submit a return, and his inaction did not amount to omission or failure to submit a return, inviting the applicability of S. 34(1)(a). He submitted that omission or failure to make a return can only arise qua a non-resident, if no return is filed after service of an individual notice under S. 22(2). In other words, the plea is that a notice under S. 22(1) imposes an obligation upon person resident within the taxable territory and not upon non-residents, and support for this argument is sought to be obtained from S. 1 sub-sec. (2) which extended the Income-tax Act at the material time to British India.4. The expression "every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income-tax" in S. 22(1) include; all persons who are liable to pay tax and there is nothing in the section or in its context which exempts non-residents from liability to submit a return pursuant to a notice thereunder. The fact that a non-resident assessee may not come to know of the general notice issued under S. 22(1) is not a ground for not giving effect to the plain words used in the section. In terms, the clause read with R. 18 requires every person who has taxable income to submit his return, and if he fails to do so, under S. 34 of the Act the Income-tax Officer may commence proceedings for assessment within the period prescribed by cl. (1)(a). Section 34(1)(b) applies only to those cases where there is no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment. To the appellant though non-resident income had admittedly accrued in the taxable territory and that income exceeded the maximum amount not chargeable to income-tax. The appellant not having submitted a return in pursuance of the notice issued under S. 22(1), the Income-tax Officer was competent under S. 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax. Once a notice is given by publication in the press and in the prescribed manner under S. 22(1), every person whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, it will be deemed that there was omission on his part to make a return within the meaning of S. 34 (1)(a). There is no warrant for the submission that S. 22(1) applies to residents only and that an obligation to make a return on the part of a non-resident can only arise if a notice under sub-sec. (2) is served. Under sub-sec. (2) it is open to the Income-tax Officer to serve a special notice upon any person requiring him to furnish a return in the prescribed form, but that provision does not derogate from the liability arising under sub-sec. (1) to submit a return.5. The Income-tax Act extends by section 1(2) to the taxable territory and not beyond; but within that territory, the Income-tax Officer has power to tax income which accrues, arises or is received, and that is not disputed by the appellant. If power to tax be granted, it is difficult to appreciate the ground on which the plea that the general provision imposing liability upon persons receiving taxable income is subject to an unexpressed limitation that it is to apply only to residents and not to non-residents. The submission that a person liable to pay tax but resident outside the taxable territory must be served with a special notice under S. 22(2) before his inaction in the matter of making a return may be deemed omission within the meaning of S. 34(1) is without force. There is no such express provision made by the statute and none can be implied from the context.6. The High Court was therefore right in holding that the proceedings for assessment were properly commenced within the period of limitation prescribed by S. 34(1)(a) from the close of the year of assessment.
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0[ds]At the material time, by S. 34(1)(a), the Income-tax Officer was invested with power amongst others to serve at any time within eight years from the end of any year of assessment notice of assessment if he had reason to believe that income, profits or gains had escaped assessment by reason of omission or failure on the part of the assessee to make a return of his income under S. 22 for that year, or to disclose fully and truly all material facts necessary for his assessment of that year. In those cases where the Income-tax Officer had in consequence of information in his possession reason to believe that income, profits or gains had escaped assessment even though there was no omission or failure as mentioned in cl. (a), he could under cl. (b) within four years from the end of the year of assessment serve a notice of assessment. Admittedly the notices issued by the Income-tax Officer for the years in question were issued within eight years from the end of the years of assessment and if cl. (1)(a) of S. 34 applied, the assessment was not barred by the law of limitation. But the appellant contended that the notices for assessment were, even though he had not made a return of his income for the years in question, governed not by cl. (1)(a) of S. 34, but by cl. (1)(b) of S.The expression "every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income-tax" in S. 22(1) include; all persons who are liable to pay tax and there is nothing in the section or in its context which exempts non-residents from liability to submit a return pursuant to a notice thereunder. The fact that a non-resident assessee may not come to know of the general notice issued under S. 22(1) is not a ground for not giving effect to the plain words used in the section. In terms, the clause read with R. 18 requires every person who has taxable income to submit his return, and if he fails to do so, under S. 34 of the Act the Income-tax Officer may commence proceedings for assessment within the period prescribed by cl. (1)(a). Section 34(1)(b) applies only to those cases where there is no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment. To the appellant though non-resident income had admittedly accrued in the taxable territory and that income exceeded the maximum amount not chargeable to income-tax. The appellant not having submitted a return in pursuance of the notice issued under S. 22(1), the Income-tax Officer was competent under S. 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax. Once a notice is given by publication in the press and in the prescribed manner under S. 22(1), every person whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, it will be deemed that there was omission on his part to make a return within the meaning of S. 34 (1)(a). There is no warrant for the submission that S. 22(1) applies to residents only and that an obligation to make a return on the part of a non-resident can only arise if a notice under sub-sec. (2) is served. Under sub-sec. (2) it is open to the Income-tax Officer to serve a special notice upon any person requiring him to furnish a return in the prescribed form, but that provision does not derogate from the liability arising under sub-sec. (1) to submit a return.5. The Income-tax Act extends by section 1(2) to the taxable territory and not beyond; but within that territory, the Income-tax Officer has power to tax income which accrues, arises or is received, and that is not disputed by the appellant. If power to tax be granted, it is difficult to appreciate the ground on which the plea that the general provision imposing liability upon persons receiving taxable income is subject to an unexpressed limitation that it is to apply only to residents and not to non-residents. The submission that a person liable to pay tax but resident outside the taxable territory must be served with a special notice under S. 22(2) before his inaction in the matter of making a return may be deemed omission within the meaning of S. 34(1) is without force. There is no such express provision made by the statute and none can be implied from the context.6. The High Court was therefore right in holding that the proceedings for assessment were properly commenced within the period of limitation prescribed by S. 34(1)(a) from the close of the year of assessment.
| 0 | 1,535 | 949 |
### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the Constitution, this appeal is preferred by the appellant against the order of the High Court.3. The only question which falls to be determined in this appeal is whether the proceedings for assessment were commenced within the period of limitation prescribed for serving notice of assessment under section 34(1)(a) of the Act. At the material time, by S. 34(1)(a), the Income-tax Officer was invested with power amongst others to serve at any time within eight years from the end of any year of assessment notice of assessment if he had reason to believe that income, profits or gains had escaped assessment by reason of omission or failure on the part of the assessee to make a return of his income under S. 22 for that year, or to disclose fully and truly all material facts necessary for his assessment of that year. In those cases where the Income-tax Officer had in consequence of information in his possession reason to believe that income, profits or gains had escaped assessment even though there was no omission or failure as mentioned in cl. (a), he could under cl. (b) within four years from the end of the year of assessment serve a notice of assessment. Admittedly the notices issued by the Income-tax Officer for the years in question were issued within eight years from the end of the years of assessment and if cl. (1)(a) of S. 34 applied, the assessment was not barred by the law of limitation. But the appellant contended that the notices for assessment were, even though he had not made a return of his income for the years in question, governed not by cl. (1)(a) of S. 34, but by cl. (1)(b) of S. 34. He contended that being a resident outside the taxable territory in the years of assessment, a general notice under S. 22(1) did not give rise to a liability to submit a return, and his inaction did not amount to omission or failure to submit a return, inviting the applicability of S. 34(1)(a). He submitted that omission or failure to make a return can only arise qua a non-resident, if no return is filed after service of an individual notice under S. 22(2). In other words, the plea is that a notice under S. 22(1) imposes an obligation upon person resident within the taxable territory and not upon non-residents, and support for this argument is sought to be obtained from S. 1 sub-sec. (2) which extended the Income-tax Act at the material time to British India.4. The expression "every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income-tax" in S. 22(1) include; all persons who are liable to pay tax and there is nothing in the section or in its context which exempts non-residents from liability to submit a return pursuant to a notice thereunder. The fact that a non-resident assessee may not come to know of the general notice issued under S. 22(1) is not a ground for not giving effect to the plain words used in the section. In terms, the clause read with R. 18 requires every person who has taxable income to submit his return, and if he fails to do so, under S. 34 of the Act the Income-tax Officer may commence proceedings for assessment within the period prescribed by cl. (1)(a). Section 34(1)(b) applies only to those cases where there is no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment. To the appellant though non-resident income had admittedly accrued in the taxable territory and that income exceeded the maximum amount not chargeable to income-tax. The appellant not having submitted a return in pursuance of the notice issued under S. 22(1), the Income-tax Officer was competent under S. 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax. Once a notice is given by publication in the press and in the prescribed manner under S. 22(1), every person whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, it will be deemed that there was omission on his part to make a return within the meaning of S. 34 (1)(a). There is no warrant for the submission that S. 22(1) applies to residents only and that an obligation to make a return on the part of a non-resident can only arise if a notice under sub-sec. (2) is served. Under sub-sec. (2) it is open to the Income-tax Officer to serve a special notice upon any person requiring him to furnish a return in the prescribed form, but that provision does not derogate from the liability arising under sub-sec. (1) to submit a return.5. The Income-tax Act extends by section 1(2) to the taxable territory and not beyond; but within that territory, the Income-tax Officer has power to tax income which accrues, arises or is received, and that is not disputed by the appellant. If power to tax be granted, it is difficult to appreciate the ground on which the plea that the general provision imposing liability upon persons receiving taxable income is subject to an unexpressed limitation that it is to apply only to residents and not to non-residents. The submission that a person liable to pay tax but resident outside the taxable territory must be served with a special notice under S. 22(2) before his inaction in the matter of making a return may be deemed omission within the meaning of S. 34(1) is without force. There is no such express provision made by the statute and none can be implied from the context.6. The High Court was therefore right in holding that the proceedings for assessment were properly commenced within the period of limitation prescribed by S. 34(1)(a) from the close of the year of assessment.
### Response:
0
### Explanation:
At the material time, by S. 34(1)(a), the Income-tax Officer was invested with power amongst others to serve at any time within eight years from the end of any year of assessment notice of assessment if he had reason to believe that income, profits or gains had escaped assessment by reason of omission or failure on the part of the assessee to make a return of his income under S. 22 for that year, or to disclose fully and truly all material facts necessary for his assessment of that year. In those cases where the Income-tax Officer had in consequence of information in his possession reason to believe that income, profits or gains had escaped assessment even though there was no omission or failure as mentioned in cl. (a), he could under cl. (b) within four years from the end of the year of assessment serve a notice of assessment. Admittedly the notices issued by the Income-tax Officer for the years in question were issued within eight years from the end of the years of assessment and if cl. (1)(a) of S. 34 applied, the assessment was not barred by the law of limitation. But the appellant contended that the notices for assessment were, even though he had not made a return of his income for the years in question, governed not by cl. (1)(a) of S. 34, but by cl. (1)(b) of S.The expression "every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income-tax" in S. 22(1) include; all persons who are liable to pay tax and there is nothing in the section or in its context which exempts non-residents from liability to submit a return pursuant to a notice thereunder. The fact that a non-resident assessee may not come to know of the general notice issued under S. 22(1) is not a ground for not giving effect to the plain words used in the section. In terms, the clause read with R. 18 requires every person who has taxable income to submit his return, and if he fails to do so, under S. 34 of the Act the Income-tax Officer may commence proceedings for assessment within the period prescribed by cl. (1)(a). Section 34(1)(b) applies only to those cases where there is no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment. To the appellant though non-resident income had admittedly accrued in the taxable territory and that income exceeded the maximum amount not chargeable to income-tax. The appellant not having submitted a return in pursuance of the notice issued under S. 22(1), the Income-tax Officer was competent under S. 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax. Once a notice is given by publication in the press and in the prescribed manner under S. 22(1), every person whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, it will be deemed that there was omission on his part to make a return within the meaning of S. 34 (1)(a). There is no warrant for the submission that S. 22(1) applies to residents only and that an obligation to make a return on the part of a non-resident can only arise if a notice under sub-sec. (2) is served. Under sub-sec. (2) it is open to the Income-tax Officer to serve a special notice upon any person requiring him to furnish a return in the prescribed form, but that provision does not derogate from the liability arising under sub-sec. (1) to submit a return.5. The Income-tax Act extends by section 1(2) to the taxable territory and not beyond; but within that territory, the Income-tax Officer has power to tax income which accrues, arises or is received, and that is not disputed by the appellant. If power to tax be granted, it is difficult to appreciate the ground on which the plea that the general provision imposing liability upon persons receiving taxable income is subject to an unexpressed limitation that it is to apply only to residents and not to non-residents. The submission that a person liable to pay tax but resident outside the taxable territory must be served with a special notice under S. 22(2) before his inaction in the matter of making a return may be deemed omission within the meaning of S. 34(1) is without force. There is no such express provision made by the statute and none can be implied from the context.6. The High Court was therefore right in holding that the proceedings for assessment were properly commenced within the period of limitation prescribed by S. 34(1)(a) from the close of the year of assessment.
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Shyam Sunder Prasad Singh & Others Vs. State of Bihar & Others
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and 215 of his judgment thus :"214. It will thus appear that of all the other writers of Mithila School mentioned earlier, Pandit Amarit Nath Jha is the only one who has unequivocally said that during the Kali age those four kinds of sons, viz. Aurasa, Dattaka, kritrim and Putrika putra, can be made and recognised, It will, however, appear that he has taken no. note of Saunaka and Adityapuran. Even though he has referred to Nanda Pandit and discarded the Kshetraj on account of the interpretation by Nanda Pandit, he has not referred to the prohibition of Saunaka and the acceptance thereof by Nanda Pandit and naturally, therefore he has given no. reasons for differing with Nanda Pandit and the several other commentators who have been discussed earlier and who accepted the prohibition of Saunaka so an to include the Putrika Putra.215. The learned author of this book is a product of the 19th century. Whether the custom of Putrika Putra obtains in Mithila is a question which cannot be answered merely on the basis of the precept of this writer that even during the Kali age such sons should be made. It may be recalled that the Privy Council in the case of Thakur Jeebnath said that for more than a century not a single case of adoption in the form of Putrika Putra was brought to their Lordships notice. Barring the few cases of Narsing Narain, Thakur Jeebnath and Babui Rita Kuer no. other case was brought to our notice even today where the custom of Putrika Putra had been alleged or decided. Be that as it may, nobody has claimed any authority for Pandit Amrit Nath Jha, except with respect to the Mithila School. His authority will, therefore, lend support, if at all, to the case of the plaintiffs of Title Suit No. 25 of 1958, only if they are able to establish that the Bettiah Raj family was governed by the Mithila School of Hindu Law. I may state here that the conclusion which I have arrived at on this question is that the evidence in this case does not prove that the aforesaid family was governed by the Mithila School; on the other hand it is clear that it was governed by the Benaras School of Hindu Law and in view of that the authority of Pandit Amrit Nath Jha is of no. avail to the plaintiffs."115. We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. On a consideration of the entire matter, we hold that throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of Kerala. We should also record that the High Court has taken the view on a careful analysis and consideration of the entire material before it that Raja Dhrub Singh had in fact not appointed his daughter as a putrika to beget a putrika putra for him. Apart from the evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G. N. Prasad, J. which reads thus : -"73. All these statements reveal a strange state of affairs. Ambika (plaintiff No. 1) thought the plea with regard to, the Kritrim form of adoption to be correct but Kamleshwari (plaintiff No. 6) thought it to be incorrect. Ambika had no. knowledge of any plea of Dattaka form of adoption having been set up on his behalf, Kamleshwari not only characterised that plea to be wrong but even disclaimed to have any such plea having been taken on his behalf. In other words, the plea of Dattaka form of adoption was taken without the knowledge or authority of either of the two deposing plaintiffs, namely Ambika (D. W. 15) and Kamleshwari (D. W. 27) and it was evidently done at the initiative of the Karpardaz of the legal adviser of the plaintiffs of title Suit N0. 25, who obviously could have no. personal knowledge of the real facts, although however, the plea of Dattaka form of adoption was also given up at a later stage. The multiplicity of the various pleas cannot be lost sight of while dealing with the surviving plea of Putrika Putra form of adoption, particularly when this also was not taken in the first instance. It seems to me that the entire case of adoption put forward on behalf of the plaintiffs of Title Suit No. 25 is the product of imagination of their legal advisers, having little relation with true facts."116. After giving our anxious consideration to all aspects of the case, we hold that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete long before the lifetime of Raja Dhrub Singh, and, Raja Jugal Kishore Singh could not, therefore, in law be considered as putrika putra of Raja Dhrub Singh. It follows that the appellants who claim the estate on the above basis cannot succeed. In view of the foregoing, it is not necessary for us to go into the question whether the decisions of the Privy Council rendered prior to the abolition of its jurisdiction over India were binding on the Indian Courts, which is precisely the question formulated in the certificate issued by the High court.
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0[ds]53. It is no. doubt true that in some earlier decisions to which a detailed reference at this stage is not necessary some statements found in Smriti Chandrika which were directly in conflict with the Mitakshara were not accepted and the Mitakshara was given the preference but still as observed by Mayne there can, however, be little doubt that its general authority is fairly high on points on which it does not come into conflict with the Mitakshara and that it is a work which is referred to throughout India with great respect - by Nilakantha, Mitramisra and others.It is true that some observations made in Lal Tribhawan Nath Singh v. Deputy Commissioner, Fyzabad AIR 1918 Oudh 225 support the theory that the institution of putrika-putra was in vogue even now. Two of the questions involved in that case were whether Sir Pratap Narain Singh was the putrika-putra of Sir Man Singh who was the former holder of an impartible estate, known as taluka Ajudhia and whether the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable. Stuart, A. J. C. who delivered the leading judgment in that case with whom Kanhaiya Lal, A. J. C. agreed held that Sri Pratap Narain Singh was not the putrika-putra of Sir Man Singh although the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable. It is seen that the above case had a history. Maharaja Pratap Narain Singh himself had earlier instituted a suit which ultimately ended up in an appeal before the Privy Council in Maharajah Pertab Narain Singh v. Maharanee Sudhao Kooer (1877) 4 Ind App 228. In that case, his plea was that he (who was also known as Dadwa Sahib) was the son of a daughter of Maharajah Man Singh; that he had been treated by Maharajah Man Singh in all respects as his own son within the meaning of the clause 4 of Section 22 of Act I of 1869; that a will made by Maharajah Man Singh on April 22, 1864 had been revoked orally on a subsequent date and that he had become entitled to the estate of Maharajah Man Singh. The Privy Council held that the will had been revoked and Maharajah had died intestate and that Maharajah Pratap Singh was the person who under cl. 4 of Section 22 of Act I of 1869 was entitled to succeed to the taluk, and that he had made out his claim to a declamatory decree to that effect. The Privy Council further held that the declaration was limited to the taluk and what passed with it but it did not affect the succession to the personal property or property not properly the parcel of the talukdaree estate which was governed by the ordinary law of succession. It is significant that no. claim had been preferred by Maharaja Pratap Narain Singh on the ground that he was a putrika-putra of Maharajah Man Singh.Thus ended the first series of litigation. Now reverting to the case of Lal Tribhawan Nath Singh (AIR 1918 Oudh 225) (supra) it should be stated that the suit out of which the said appeal arose was instituted after the death of Maharaja Pratap Narain Singh in 1906 by Tribhawan Nath Singh, grandson of Ramadhin, the eldest brother of Maharaja Man Singh in the year 1915 for a declaration that he was entitled to the estate as the heir of Maharaja Pratap Narain Singh under clause 11 of Section 22 of Act I of 1869 which provided that on the failure of persons referred to in the first ten clauses, the ordinary heir under personal law of the last holder of the taluk was entitled to succeed. He pleaded that the widows of Maharaja Pratap Narain Singh were disentitled to the estate on the ground of unchastity and that he was the nearest heir living at that time. The above case was filed on the assumption that Maharaja Pratap Singh was the putrika-putra of Maharaja Man Singh and hence the plaintiff being an agnate of Maharaja Man Singh was entitled to succeed, (Note : The claim was almost similar to the claim in these appeals). The defendants in that suit denied all allegations of the plaintiff set up in the case and pleaded that one Dukh Haran Nath Singh had been adopted by one of the widows of Maharaja Pratap Narain Singh and that even if they were not entitled to the estate, the estate had to go to the family of Narsingh Narain Singh i.e. the natural family of Maharaja Pratap Narain Singh. The trial court dismissed the suit. In the appeal, the Oudh Judicial Commissioners Court after specifically recording a finding that Maharaja Pratap Narain Singh was not the putrika-putra of Maharaja Man Singh held that the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable.73. Reliance is now placed before us on the above decision of the Oudh Court to establish that even now it is possible to have a son in the putrika-putra form. We have carefully read the two judgments of the two Additional Judicial Commissioners, Stuart and Kanhaiya Lal. We feel that the question whether the practice of taking a son in putrika-putra form was in vogue at the relevant time has not been considered in detail in the two judgments. The approach to this question appears to be bit casual even though the judgments on other material issues appear to be quite sound. Since they had held that no. ceremony constituting the mother of Maharaja Pratap Narain Singh had been performed, they might not have gone into the question of law in depth. They just proceeded on the basis of some ancient texts including the Mitakshara without devoting. attention to the practice having become obsolete.From the above passage it is clear that the institutions of putrika and putrika putra have become obsolete. But the tirade against Bengal lawyers is uncharitable. They are not responsible for the change. In fact it is Hindu society which brought about such a change. We shall presently deal with the reasons which were responsible for such a change.According to Manu "A son is even as ones self, daughter is equal to a son, how can another (heir) take the estate, while (such daughter who is) ones self, lives. The daughters son shall take the whole estate of his maternal grand father who leaves no. male issue. Between a son and the son of a daughter, there is no. difference according to law. But if, after a daughter has been appointed, a son be born (to her father) the division (of the inheritance) must in that (case) be equal, for there is no. right of primogeniture for a woman". Apastamba declared The daughter may take the inheritance of a sonless man. Yajnavalkya said The son of a putrika is equal to him (the son). Narada stated in failure of a son, the daughter succeeds because she continues the lineage just like a son.98. From the above texts, it is obvious that in ancient times, the daughter and the daughters son were given preference over even the widow of a person in the matter of succession. It is said that ancient commentators like Medhathithi and Haradatta had declared that the widow was no. heir and notwithstanding some texts in her favour, her right was not fully recognised till Yajnavalkya stated that the widow would succeed to the estate of a sonless person. In Yajnavalkya Smriti, the order of succession to a male was indicated in the following order : (1) son, grandson, great grandson (2) putrika-putra (3) other subsidiary or secondary sons, (4) widow and (5) daughter. After daughter, it was not expressly stated that daughters son would succeed, but the parents were shown as the successors. Vijnanesvara, however, interpreted the word (cha), which meant also in (Duhitaraschaiva) in the text of Yajnavalkya laying down the compact series of heirs as referring to daughters son. The relevant text of Yajnavalkya has been quoted above. Vijnanesvara interpreted the word cha referred to above as follows : -(By the import of the particle also, the daughters son succeeds to the estate on failure of daughters. Thus Vishnu says "If a man leaves neither son, nor sons son, nor (wife, nor female) issue, the daughters son shall take his wealth. For in regard to the obsequies of the ancestors, daughters sons are considered as sons sons. Manu likewise declares By that male child, whom a daughter whether formally appointed or not shall produce from a husband of an equal class, the maternal grandfather becomes the grandsire of a sons son : let that son give the funeral oblation and possess the inheritance. It may be noticed that but for the above interpretation of the word cha a daughters son would have come in as an heir after all agnates as the daughters son is only a cognate (Bandhu). As a result of the above interpretation, the daughters son was promoted in rank next only to his maternal grand-mother and his mother whose interest in the estate was only a limited one. Viewed from this situation, the reason for abandoning the practice of appointing a daughter as putrika and treating her son as putrika putra becomes clear. When a person had two or more daughters, the appointment of one of them would give her primacy over the wife and the other daughters (not so appointed) and her son (appointed daughters son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i. e. the other sons of the appointed daughter). Whereas in the case of plurality of sons, all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded. It is probably to prevent this kind of inequality which would arise among the daughters and daughters sons, the practice of appointing a single daughter as a putrika to raise an issue must have been abandoned when people were satisfied that their religious feelings were satisfied, by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of the daughters sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders.While interpreting the ancient texts of Smritis and Commentaries on Hindu Dharmasastra, we should bear in mind the dynamic role played by learned commentators who were like Roman Juris Consults. The commentators tried to interpret the texts so as to bring them in conformity with the prevailing conditions in the contemporary society. That such was the role of a commentator is clear even from the Mitakshara itself at least in two places first, on the point of allotment of a larger share at a partition to the eldest son which is discussed above and secondly on the question of right of inheritance of all agnates.In these appeals we are not faced with the situation with which the Privy Council was confronted. No. judicial decision of any court where a title had been upheld on the basis of putrika putra form of adoption has been brought to our notice. If really such a practice was prevailing in recent centuries, persons with only daughters and no. sons being not uncommon there should have arisen a number of cases. We may remember that the Privy Council while deciding the case of Thakoor Jeebnath Singh (1875) 2 Ind App 163) (supra) observed that it was not necessary to decide the validity of the practice of appointment of a daughter to raise an issue although there certainly does not appear to have arisen in modern times any instance in the courts where this custom has been considered. The only case where such a title was set up but not established was the case of Lal Tribhawan Nath Singh (AIR 1918 Oudh 225) (supra) which has been dealt with separately by us. Moreover we are not concerned in this case with the eligibility of a person being taken in adoption but the existence of the very institution of putrika putra itself. When we have the predominant opinion of commentators supporting its non-existence in the last few centuries extending to a period prior to the life time of Raja Dhrub Singh and there are good reasons for the Hindu society abandoning it, would be inappropriate to resurrect the said practice by placing reliance on the above argument of the learned counsel, which in the circumstances appears to be highly tenuous.113. At this stage, it should be stated that the High Court after considering in detail the evidence on record came to the conclusion that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and not by the Mithila School : See para 64 of the judgment of G. N. Prasad, J. and paras 229 and 230 of Madan Mohan Prasad, J. No. ground was made out by the learned counsel for the appellants in these appeals to take a different view. We held that the family of Raja Dhrub Singh was governed by the Benares School of Hindu Law and there is no. occasion to apply principles of the Mithila School of Hindu Law to the present case.We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. On a consideration of the entire matter, we hold that throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of Kerala. We should also record that the High Court has taken the view on a careful analysis and consideration of the entire material before it that Raja Dhrub Singh had in fact not appointed his daughter as a putrika to beget a putrika putra for him. Apart from the evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J.After giving our anxious consideration to all aspects of the case, we hold that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete long before the lifetime of Raja Dhrub Singh, and, Raja Jugal Kishore Singh could not, therefore, in law be considered as putrika putra of Raja Dhrub Singh. It follows that the appellants who claim the estate on the above basis cannot succeed. In view of the foregoing, it is not necessary for us to go into the question whether the decisions of the Privy Council rendered prior to the abolition of its jurisdiction over India were binding on the Indian Courts, which is precisely the question formulated in the certificate issued by the High court.
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and 215 of his judgment thus :"214. It will thus appear that of all the other writers of Mithila School mentioned earlier, Pandit Amarit Nath Jha is the only one who has unequivocally said that during the Kali age those four kinds of sons, viz. Aurasa, Dattaka, kritrim and Putrika putra, can be made and recognised, It will, however, appear that he has taken no. note of Saunaka and Adityapuran. Even though he has referred to Nanda Pandit and discarded the Kshetraj on account of the interpretation by Nanda Pandit, he has not referred to the prohibition of Saunaka and the acceptance thereof by Nanda Pandit and naturally, therefore he has given no. reasons for differing with Nanda Pandit and the several other commentators who have been discussed earlier and who accepted the prohibition of Saunaka so an to include the Putrika Putra.215. The learned author of this book is a product of the 19th century. Whether the custom of Putrika Putra obtains in Mithila is a question which cannot be answered merely on the basis of the precept of this writer that even during the Kali age such sons should be made. It may be recalled that the Privy Council in the case of Thakur Jeebnath said that for more than a century not a single case of adoption in the form of Putrika Putra was brought to their Lordships notice. Barring the few cases of Narsing Narain, Thakur Jeebnath and Babui Rita Kuer no. other case was brought to our notice even today where the custom of Putrika Putra had been alleged or decided. Be that as it may, nobody has claimed any authority for Pandit Amrit Nath Jha, except with respect to the Mithila School. His authority will, therefore, lend support, if at all, to the case of the plaintiffs of Title Suit No. 25 of 1958, only if they are able to establish that the Bettiah Raj family was governed by the Mithila School of Hindu Law. I may state here that the conclusion which I have arrived at on this question is that the evidence in this case does not prove that the aforesaid family was governed by the Mithila School; on the other hand it is clear that it was governed by the Benaras School of Hindu Law and in view of that the authority of Pandit Amrit Nath Jha is of no. avail to the plaintiffs."115. We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. On a consideration of the entire matter, we hold that throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of Kerala. We should also record that the High Court has taken the view on a careful analysis and consideration of the entire material before it that Raja Dhrub Singh had in fact not appointed his daughter as a putrika to beget a putrika putra for him. Apart from the evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G. N. Prasad, J. which reads thus : -"73. All these statements reveal a strange state of affairs. Ambika (plaintiff No. 1) thought the plea with regard to, the Kritrim form of adoption to be correct but Kamleshwari (plaintiff No. 6) thought it to be incorrect. Ambika had no. knowledge of any plea of Dattaka form of adoption having been set up on his behalf, Kamleshwari not only characterised that plea to be wrong but even disclaimed to have any such plea having been taken on his behalf. In other words, the plea of Dattaka form of adoption was taken without the knowledge or authority of either of the two deposing plaintiffs, namely Ambika (D. W. 15) and Kamleshwari (D. W. 27) and it was evidently done at the initiative of the Karpardaz of the legal adviser of the plaintiffs of title Suit N0. 25, who obviously could have no. personal knowledge of the real facts, although however, the plea of Dattaka form of adoption was also given up at a later stage. The multiplicity of the various pleas cannot be lost sight of while dealing with the surviving plea of Putrika Putra form of adoption, particularly when this also was not taken in the first instance. It seems to me that the entire case of adoption put forward on behalf of the plaintiffs of Title Suit No. 25 is the product of imagination of their legal advisers, having little relation with true facts."116. After giving our anxious consideration to all aspects of the case, we hold that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete long before the lifetime of Raja Dhrub Singh, and, Raja Jugal Kishore Singh could not, therefore, in law be considered as putrika putra of Raja Dhrub Singh. It follows that the appellants who claim the estate on the above basis cannot succeed. In view of the foregoing, it is not necessary for us to go into the question whether the decisions of the Privy Council rendered prior to the abolition of its jurisdiction over India were binding on the Indian Courts, which is precisely the question formulated in the certificate issued by the High court.
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would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i. e. the other sons of the appointed daughter). Whereas in the case of plurality of sons, all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded. It is probably to prevent this kind of inequality which would arise among the daughters and daughters sons, the practice of appointing a single daughter as a putrika to raise an issue must have been abandoned when people were satisfied that their religious feelings were satisfied, by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of the daughters sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders.While interpreting the ancient texts of Smritis and Commentaries on Hindu Dharmasastra, we should bear in mind the dynamic role played by learned commentators who were like Roman Juris Consults. The commentators tried to interpret the texts so as to bring them in conformity with the prevailing conditions in the contemporary society. That such was the role of a commentator is clear even from the Mitakshara itself at least in two places first, on the point of allotment of a larger share at a partition to the eldest son which is discussed above and secondly on the question of right of inheritance of all agnates.In these appeals we are not faced with the situation with which the Privy Council was confronted. No. judicial decision of any court where a title had been upheld on the basis of putrika putra form of adoption has been brought to our notice. If really such a practice was prevailing in recent centuries, persons with only daughters and no. sons being not uncommon there should have arisen a number of cases. We may remember that the Privy Council while deciding the case of Thakoor Jeebnath Singh (1875) 2 Ind App 163) (supra) observed that it was not necessary to decide the validity of the practice of appointment of a daughter to raise an issue although there certainly does not appear to have arisen in modern times any instance in the courts where this custom has been considered. The only case where such a title was set up but not established was the case of Lal Tribhawan Nath Singh (AIR 1918 Oudh 225) (supra) which has been dealt with separately by us. Moreover we are not concerned in this case with the eligibility of a person being taken in adoption but the existence of the very institution of putrika putra itself. When we have the predominant opinion of commentators supporting its non-existence in the last few centuries extending to a period prior to the life time of Raja Dhrub Singh and there are good reasons for the Hindu society abandoning it, would be inappropriate to resurrect the said practice by placing reliance on the above argument of the learned counsel, which in the circumstances appears to be highly tenuous.113. At this stage, it should be stated that the High Court after considering in detail the evidence on record came to the conclusion that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and not by the Mithila School : See para 64 of the judgment of G. N. Prasad, J. and paras 229 and 230 of Madan Mohan Prasad, J. No. ground was made out by the learned counsel for the appellants in these appeals to take a different view. We held that the family of Raja Dhrub Singh was governed by the Benares School of Hindu Law and there is no. occasion to apply principles of the Mithila School of Hindu Law to the present case.We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. On a consideration of the entire matter, we hold that throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of Kerala. We should also record that the High Court has taken the view on a careful analysis and consideration of the entire material before it that Raja Dhrub Singh had in fact not appointed his daughter as a putrika to beget a putrika putra for him. Apart from the evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J.After giving our anxious consideration to all aspects of the case, we hold that the practice of appointing a daughter as a putrika to beget a son who would become the putrika putra had become obsolete long before the lifetime of Raja Dhrub Singh, and, Raja Jugal Kishore Singh could not, therefore, in law be considered as putrika putra of Raja Dhrub Singh. It follows that the appellants who claim the estate on the above basis cannot succeed. In view of the foregoing, it is not necessary for us to go into the question whether the decisions of the Privy Council rendered prior to the abolition of its jurisdiction over India were binding on the Indian Courts, which is precisely the question formulated in the certificate issued by the High court.
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Smt Sarla Dixit & Anr Vs. Balwant Yadav & Ors
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that even after the accident he had not slowed down his vehicle and went on driving with great speed, is fully established by the further fact that even after the accident, his vehicle could not stop there and then but had travelled further and had gone upto 70 ft. further and had then stopped near the south-eastern side of the road after the collision. The conclusion is, therefore, inevitable that respondent No. 2 while driving the offending truck was in a position to see in the broad day light the scooterist Rama Kant who had already entered the intersection and was almost half way in it, still had continued to drive recklessly in a totally careless manner. Because respondent No. 2 was not having a driving licence, he was a novice trying to learn driving such heavy vehicle at the cost of such innocent victims like Rama Kant. Being a novice he went on driving fast before approaching intersection of road No. 7 and could not control his vehicle by stopping it or by slowing it down so as to avoid collision with the scooterist who had come across his way. Resultantly he dashed with the scooter in the centre of Road No. 7 with the left side of the scooterist Rama Kant and his scooter. As seen above having thrown off the scooterist and the pillion rider respondent No. 2 could not control his vehicle which was in such speed that he could bring it to a halt after travelling further to the extend of 70 ft. and then it proceeded towards the wrong side of the road and halted near the southern side of road No. 7 after the collision. All these tell-tale facts unequivocally point to one and only conclusion that it was the rash and negligent driving by respondent No. 2, a young boy aged 20, who was a novice driver without a licence to drive such heavy vehicle, that had caused this unfortunate accident. Deceased Rama Kant was not at all negligent and had not contributed to the accident save and except to the extent of bringing his body for being subjected to the impact of the on-coming truck. If at all, his only contribution was that he became a victim of this accident by being on spot on that fateful morning. It is, therefore, not possible for us to agree with the contention of the learned counsel for respondents Nos. 1 and 2 that deceased Rama Kant had contributed to the accident by his own negligence to the extent of 75% or even to the extent of any lesser percentage. On this evidence the High Court was justified in reversing the finding of the Trial Court that deceased Rama Kant was guilty of contributory negligence to the extent of 75%. It must be held that deceased Rama Kant was not at all negligent and the entire cent per cent negligence rested on the shoulder of respondent No. 2, driver of the truck. It is also not possible to agree with the contention of learned counsel for respondents Nos. 1 and 2 that deceased Rama Kant was guilty of breach of Regulation (7) of Tenth Schedule of the Motor Vehicles Act. 1939. That regulation read as under : "7. The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicle proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand." On the facts of the present case it is well established from the evidence of pillion rider Ramji Sharma, appellants-witness No. 7 that while entering the intersection from the northern side of road No. 7 deceased had already sounded the horn and had also given a hand signal to indicate that he intended to go across road No. 7. There was no occasion for him to halt and give way to the truck coming from the western side and proceeding towards the eastern side of Road No. 7 for the simple reason that Rama Kant had already entered the intersection and had travelled almost half way across the breadth of Road No. 7. In the meantime the offending truck came with great speed from the western side and dashed against the scooter. Regulation (7) could have been pressed in service against deceased Rama Kant if it was shown that while entering the intersection, having seen the on-coming truck from his right hand side he had not taken due precaution. Such a situation, on the facts of the present case, is found to be absent. On the other hand respondent No. 2 driving the offending truck on the main road No. 7 from west to east is shown to have committed breach of Regulation (6) of the very same Schedule which read as under : "6. The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon." Respondent No. 2 was required to slow down while approaching the road intersection or junction and as he had not done so but went on driving with full speed the offending truck which threw off the scooterist who was already in the middle of the intersection, he was guilty of breach of Regulation (6) of Tenth Schedule and had endangered the safety of the persons crossing the said road at the relevant time. Consequently the recklessness and negligence in driving the offending truck at the relevant time wholly rest on the shoulder of respondent No. 2, Point No. 2 is, therefore, answered in the negative. Hence there is no question of slicing down any amount from the compensation held payable to the claimants as per our findings on point No. 1 above. Point No. 3
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1[ds]In our view on the peculiar facts of that case the Court had adopted multiplier of 24. In paragraph 10 of the Report no special reasons were assigned for adopting thatWe are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier-method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act. 1939, insofar as it envisages the compensation to be just, the statutory determination of a just compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a just compensation which will make for uniformity and certainly of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases.The multiplier represents the number of years purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs. 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000 would be 20. Then the multiplier, i. e., the number of years purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goesfar as the adoption of the proper multiplier is concerned, it was observed that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. Applying these principles to the facts of the case before this Court in the aforesaid case it was observed that the deceased in that case was of 39 years of age. His income was Rs. 1,032/- per month. He was more or less on a stable job and considering the prospects of advancement in future career the proper higher estimate of monthly income of Rs. 2,000/- as gross income to be taken as average gross future income of the deceased and deducting at least 1/3rd therefrom by way of personal living expenses, had he survived the loss of dependency, could be capitalised by adopting the multiplicand of Rupees 1,400/- per month or Rs. 17,000/- per year and that figure could be capitalised by adopting multiplier of 12 which was appropriate to the age of deceased being 39 and to that amount was added the conventional figure of Rupees 15,000/- by way of loss of consortium and loss of estate. Adopting the same scientific yardstick as laid down in the aforesaid judgment, the computation of compensation in the present case can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs. 1,543/- per month. Rounding it up to figure of Rs. 1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderable like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i. e., up to Rs. 3,000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income at the time of death, namely, Rs. 1,500/- per month to the maximum which he would have otherwise got had he not died a premature death, i. e. Rs. 3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs. 4,500/- divided by 2, i. e. Rs. 2,200/-. Rs. 2,200/- per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner. From that gross monthly income at least 1/3rd will have to be deducted by way of his personal expenses and other liabilities like payment of Income-tax etc. That would roughly work out of Rs. 730/- per month but even taking a higher figure of Rs. 750/- per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs. 2,200/- per month balance of Rs. 1,450/- which can be rounded up to Rs. 1,500/- per month would have been the average amount available to the family of the deceased, i. e., his dependents, namely appellants herein. It is this figure which would be the datum figure per month which on annual basis would work out to Rs. 18,000/-. Rs. 18,000/- therefore, would be the proper multiplicand which would be available, for capitalisation for computing the future economic loss suffered by the appellants on account of untimely death of the bread winner. As the age of the deceased was 27 years and a few months, at the time of his death the proper multiplier in the light of the aforesaid decision of this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum, (1994 AIR SCW 1356) (supra), would be 15. Rs. 18,000/- multiplied by 15 will work out to Rs. 2,70,000/-. To this figure will have to be added the conventional figure of Rs. 15,000/- by way of loss of estate and consortium etc. That will lead to a total figure of Rs. 2,85,000/-. This is the amount which the appellants would be entitled to get by way of compensation from respondents Nos. 1 and 2 subject to our decision on point No. 2.Point No.the facts of the present case it is well established from the evidence of pillion rider Ramji Sharma, appellants-witness No. 7 that while entering the intersection from the northern side of road No. 7 deceased had already sounded the horn and had also given a hand signal to indicate that he intended to go across road No. 7. There was no occasion for him to halt and give way to the truck coming from the western side and proceeding towards the eastern side of Road No. 7 for the simple reason that Rama Kant had already entered the intersection and had travelled almost half way across the breadth of Road No. 7. In the meantime the offending truck came with great speed from the western side and dashed against the scooter. Regulation (7) could have been pressed in service against deceased Rama Kant if it was shown that while entering the intersection, having seen the on-coming truck from his right hand side he had not taken due precaution. Such a situation, on the facts of the present case, is found to be absent. On the other hand respondent No. 2 driving the offending truck on the main road No. 7 from west to east is shown to have committed breach of Regulation (6) of the very sameNo. 2 was required to slow down while approaching the road intersection or junction and as he had not done so but went on driving with full speed the offending truck which threw off the scooterist who was already in the middle of the intersection, he was guilty of breach of Regulation (6) of Tenth Schedule and had endangered the safety of the persons crossing the said road at the relevant time. Consequently the recklessness and negligence in driving the offending truck at the relevant time wholly rest on the shoulder of respondent No. 2, Point No. 2 is, therefore, answered in the negative. Hence there is no question of slicing down any amount from the compensation held payable to the claimants as per our findings on point No. 1
| 1 | 6,842 | 1,740 |
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that even after the accident he had not slowed down his vehicle and went on driving with great speed, is fully established by the further fact that even after the accident, his vehicle could not stop there and then but had travelled further and had gone upto 70 ft. further and had then stopped near the south-eastern side of the road after the collision. The conclusion is, therefore, inevitable that respondent No. 2 while driving the offending truck was in a position to see in the broad day light the scooterist Rama Kant who had already entered the intersection and was almost half way in it, still had continued to drive recklessly in a totally careless manner. Because respondent No. 2 was not having a driving licence, he was a novice trying to learn driving such heavy vehicle at the cost of such innocent victims like Rama Kant. Being a novice he went on driving fast before approaching intersection of road No. 7 and could not control his vehicle by stopping it or by slowing it down so as to avoid collision with the scooterist who had come across his way. Resultantly he dashed with the scooter in the centre of Road No. 7 with the left side of the scooterist Rama Kant and his scooter. As seen above having thrown off the scooterist and the pillion rider respondent No. 2 could not control his vehicle which was in such speed that he could bring it to a halt after travelling further to the extend of 70 ft. and then it proceeded towards the wrong side of the road and halted near the southern side of road No. 7 after the collision. All these tell-tale facts unequivocally point to one and only conclusion that it was the rash and negligent driving by respondent No. 2, a young boy aged 20, who was a novice driver without a licence to drive such heavy vehicle, that had caused this unfortunate accident. Deceased Rama Kant was not at all negligent and had not contributed to the accident save and except to the extent of bringing his body for being subjected to the impact of the on-coming truck. If at all, his only contribution was that he became a victim of this accident by being on spot on that fateful morning. It is, therefore, not possible for us to agree with the contention of the learned counsel for respondents Nos. 1 and 2 that deceased Rama Kant had contributed to the accident by his own negligence to the extent of 75% or even to the extent of any lesser percentage. On this evidence the High Court was justified in reversing the finding of the Trial Court that deceased Rama Kant was guilty of contributory negligence to the extent of 75%. It must be held that deceased Rama Kant was not at all negligent and the entire cent per cent negligence rested on the shoulder of respondent No. 2, driver of the truck. It is also not possible to agree with the contention of learned counsel for respondents Nos. 1 and 2 that deceased Rama Kant was guilty of breach of Regulation (7) of Tenth Schedule of the Motor Vehicles Act. 1939. That regulation read as under : "7. The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicle proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand." On the facts of the present case it is well established from the evidence of pillion rider Ramji Sharma, appellants-witness No. 7 that while entering the intersection from the northern side of road No. 7 deceased had already sounded the horn and had also given a hand signal to indicate that he intended to go across road No. 7. There was no occasion for him to halt and give way to the truck coming from the western side and proceeding towards the eastern side of Road No. 7 for the simple reason that Rama Kant had already entered the intersection and had travelled almost half way across the breadth of Road No. 7. In the meantime the offending truck came with great speed from the western side and dashed against the scooter. Regulation (7) could have been pressed in service against deceased Rama Kant if it was shown that while entering the intersection, having seen the on-coming truck from his right hand side he had not taken due precaution. Such a situation, on the facts of the present case, is found to be absent. On the other hand respondent No. 2 driving the offending truck on the main road No. 7 from west to east is shown to have committed breach of Regulation (6) of the very same Schedule which read as under : "6. The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon." Respondent No. 2 was required to slow down while approaching the road intersection or junction and as he had not done so but went on driving with full speed the offending truck which threw off the scooterist who was already in the middle of the intersection, he was guilty of breach of Regulation (6) of Tenth Schedule and had endangered the safety of the persons crossing the said road at the relevant time. Consequently the recklessness and negligence in driving the offending truck at the relevant time wholly rest on the shoulder of respondent No. 2, Point No. 2 is, therefore, answered in the negative. Hence there is no question of slicing down any amount from the compensation held payable to the claimants as per our findings on point No. 1 above. Point No. 3
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1
### Explanation:
future career the proper higher estimate of monthly income of Rs. 2,000/- as gross income to be taken as average gross future income of the deceased and deducting at least 1/3rd therefrom by way of personal living expenses, had he survived the loss of dependency, could be capitalised by adopting the multiplicand of Rupees 1,400/- per month or Rs. 17,000/- per year and that figure could be capitalised by adopting multiplier of 12 which was appropriate to the age of deceased being 39 and to that amount was added the conventional figure of Rupees 15,000/- by way of loss of consortium and loss of estate. Adopting the same scientific yardstick as laid down in the aforesaid judgment, the computation of compensation in the present case can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs. 1,543/- per month. Rounding it up to figure of Rs. 1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderable like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i. e., up to Rs. 3,000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income at the time of death, namely, Rs. 1,500/- per month to the maximum which he would have otherwise got had he not died a premature death, i. e. Rs. 3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs. 4,500/- divided by 2, i. e. Rs. 2,200/-. Rs. 2,200/- per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner. From that gross monthly income at least 1/3rd will have to be deducted by way of his personal expenses and other liabilities like payment of Income-tax etc. That would roughly work out of Rs. 730/- per month but even taking a higher figure of Rs. 750/- per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs. 2,200/- per month balance of Rs. 1,450/- which can be rounded up to Rs. 1,500/- per month would have been the average amount available to the family of the deceased, i. e., his dependents, namely appellants herein. It is this figure which would be the datum figure per month which on annual basis would work out to Rs. 18,000/-. Rs. 18,000/- therefore, would be the proper multiplicand which would be available, for capitalisation for computing the future economic loss suffered by the appellants on account of untimely death of the bread winner. As the age of the deceased was 27 years and a few months, at the time of his death the proper multiplier in the light of the aforesaid decision of this Court in General Manager, Kerala State Road Transport Corporation, Trivandrum, (1994 AIR SCW 1356) (supra), would be 15. Rs. 18,000/- multiplied by 15 will work out to Rs. 2,70,000/-. To this figure will have to be added the conventional figure of Rs. 15,000/- by way of loss of estate and consortium etc. That will lead to a total figure of Rs. 2,85,000/-. This is the amount which the appellants would be entitled to get by way of compensation from respondents Nos. 1 and 2 subject to our decision on point No. 2.Point No.the facts of the present case it is well established from the evidence of pillion rider Ramji Sharma, appellants-witness No. 7 that while entering the intersection from the northern side of road No. 7 deceased had already sounded the horn and had also given a hand signal to indicate that he intended to go across road No. 7. There was no occasion for him to halt and give way to the truck coming from the western side and proceeding towards the eastern side of Road No. 7 for the simple reason that Rama Kant had already entered the intersection and had travelled almost half way across the breadth of Road No. 7. In the meantime the offending truck came with great speed from the western side and dashed against the scooter. Regulation (7) could have been pressed in service against deceased Rama Kant if it was shown that while entering the intersection, having seen the on-coming truck from his right hand side he had not taken due precaution. Such a situation, on the facts of the present case, is found to be absent. On the other hand respondent No. 2 driving the offending truck on the main road No. 7 from west to east is shown to have committed breach of Regulation (6) of the very sameNo. 2 was required to slow down while approaching the road intersection or junction and as he had not done so but went on driving with full speed the offending truck which threw off the scooterist who was already in the middle of the intersection, he was guilty of breach of Regulation (6) of Tenth Schedule and had endangered the safety of the persons crossing the said road at the relevant time. Consequently the recklessness and negligence in driving the offending truck at the relevant time wholly rest on the shoulder of respondent No. 2, Point No. 2 is, therefore, answered in the negative. Hence there is no question of slicing down any amount from the compensation held payable to the claimants as per our findings on point No. 1
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The Commissioner Of Income-Tax,Hyderabad Vs. Dewan Bahadur Ramgopal Mills Ltd
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S. 12 seems to be that it is for the Central Government to determine if any difficulty of the nature indicated in the section has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive but that does not make the notification of 1956 bad. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1956 SCR 427: (AIR 1958 SC 909 ) we said at page 435: "Now, the authorities are clear that it is not unconstitutional for the Legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like". We are, therefore, of the view that the notification of 1956, was validly made under S. 12 and is not ultra vires the powers conferred on the Central Government by that section. 8. The second question is - does the notification apply to the assessment in the present case, which is an assessment for the year 1951-52 ? The notification was made in 1956 and it added an Explanation to paragraph 2 of the Removal of Difficulties Order, 1950. It says that a particular expression occurring in that paragraph means and shall be deemed always to have meant that aggregate allowance for depreciation taken into account in computing the written down value etc., under any law of a Part B State. The argument on behalf of the respondent is that the law which governs an assessment for the assessment year 1951-52 is the law in force at the time when the Finance Act, 1951, came into force; accordingly, so the argument proceeds, paragraph 2 of the Removal of Difficulties Order, 1950, as it stood on April 28, 1951, when the Finance Act, 1951, came into force, will apply in the present case. We consider this argument to be unsound. The Explanation, though added in 1956, explains the meaning of paragraph 2 of the Removal of Difficulties Order, 1950 and says in express terms that the paragraph shall be deemed always to have had that meaning. Section 12 by the very nature of its intent and purpose confers on the Central Government power to make an order to remove a difficulty which has already arisen, and the power to remove the difficulty must necessarily include the power to remove the difficulty from the time it arose. The Central Government has, therefore, the power to make an order or give a direction so as to remove the difficulty from the very beginning, and that is what the notification of 1956 does. It applies to the assessment of 1951-52; indeed it applies to all assessments made under the Indian Income-tax Act in which paragraph 2 of the Removal of Difficulties Order, 1950, operates. 9. The last challenge to the validity of the notification of 1956 is that it contravenes Art. 14 of the Constitution, because it discriminates between different classes of tax payers. Learned Counsel for the respondent has asked us to consider the cases of assessees in three different areas which subsequently come in a Part B State : in one area there was no law relating to income-tax; in the second there was a law relating to income-tax under which written down value was computed on the basis of depreciation actually allowed year after year, while in the third the written down value was computed in the manner provided under the Hyderabad Income-tax Act; it is pointed out that on the extension of the Indian Income-tax Act (read with paragraph 2 of the Removal of Difficulties Order, 1950 and the Explanation) to those areas, the assessee in the first area will get depreciation allowance on the actual cost; in the second area he will get such allowance on the basis of actual cost less depreciation actually allowed; and in the third area he will get such allowance on the actual cost less depreciation taken into account. It is contended that this resultant discrimination is arbitrary and without any rational justification. We think that learned Counsel for the respondent has ignored one essential consideration which clearly vitiates his argument. In the matter of depreciation allowance, the assessees in the three areas in the example given by him do not stand on the same footing; they are not situated alike so as to be entitled to be treated alike. It is obvious that an assessee from an area where there was no income-tax law at all can never say that in the matter of depreciation allowance as respects buildings, machinery, plant etc., he is on a par with a person in an area where there was a law relating to income-tax allowing depreciation on such buildings, machinery, plant etc. The same would be the position with regard to areas where the previous law as to depreciation was different. Indeed, to treat all these persons alike would be tantamount to unequal treatment. 10. In our view, the notification of 1956 creates no unequal treatment of persons in a like situation; it applies to all who are in a like situation, namely, all those to whom paragraph 2 of the Removal of Difficulties Order, 1950, applies. We consider that the challenge to the notification based on Art. 14 is wholly unsubstantial. 11. It has not been disputed before us that a change in law validly made and applicable to a case pending in appeal must be considered and given effect to by the Appellate Court. The conclusion we have reached is that the notification of 1956 was validly made and applies to the present case. In view of this conclusion we have considered it unnecessary to examine the notification of 1953 or the reasons for which the High Court held that notification to be bad. 12.
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1[ds]It is obvious that in applying cl. (b) to an assessee in a Part B State there would be an initial difficulty, inasmuch as prior to 1950 when the Indian Income-tax Act came into force in a Part B State no depreciation could have been actually allowed to such an assessee under the Income-tax Act or under any Act repealed thereby; for example, the Hyderabad Income-tax Act was repealed by the Finance Act, 1950 and not by the Income-tax Act and would not therefore be covered by cl. (b). Such and other difficulties led to the Removal of Difficulties Order, 1950, which has not been seriously challenged before us. Indeed, the High Court said that it was not open to the respondent to challenge the validity of the Removal of Difficulties Order, 1950, because such a point was not taken before the TribunalThe basic and normal scheme of depreciation under the Indian Income-tax Act is that it decreases every year, being a percentage of the written down value which in the first year is the actual cost and in succeeding years actual cost less all depreciation actually allowed under the Income-tax Act or any Act repealed thereby etc. The Hyderabad Income-tax Act not having been repealed by the Income-tax Act but by the Finance Act, 1950, there was a difficulty in allowing depreciation to an assessee in Part B State in the first year of assessment under the Indian Income-tax Act. This difficulty was sought to be removed by paragraph 2 of the Removal of Difficulties Order, 1950. If, however, depreciation actually allowed under the Hyderabad Income-tax Act was taken into account in computing the aggregate depreciation allowance and the written down value, an anomalous result would follow as in the present case, namely, depreciation allowance to be allowed to the assessee in the accounting year under the Indian Income-tax Act would be more than what was allowed in previous years under the Hyderabad Income-tax ActThis would create a disparity and be against the scheme of the Income-tax Act. It was therefore necessary to explain paragraph 2 of the Removal of Difficulties Order, 1950, to assimilate or harmonise the position regarding depreciation allowance, and the Explanation added in 1953 or 1956 was obviously intended to remove the difficulty arising out of that disparity or disharmonyThe notification was made in 1956 and it added an Explanation to paragraph 2 of the Removal of Difficulties Order, 1950. It says that a particular expression occurring in that paragraph means and shall be deemed always to have meant that aggregate allowance for depreciation taken into account in computing the written down value etc., under any law of a Part B State. The argument on behalf of the respondent is that the law which governs an assessment for the assessment year 1951-52 is the law in force at the time when the Finance Act, 1951, came into force; accordingly, so the argument proceeds, paragraph 2 of the Removal of Difficulties Order, 1950, as it stood on April 28, 1951, when the Finance Act, 1951, came into force, will apply in the present case. We consider this argument to be unsound. The Explanation, though added in 1956, explains the meaning of paragraph 2 of the Removal of Difficulties Order, 1950 and says in express terms that the paragraph shall be deemed always to have had that meaning. Section 12 by the very nature of its intent and purpose confers on the Central Government power to make an order to remove a difficulty which has already arisen, and the power to remove the difficulty must necessarily include the power to remove the difficulty from the time it arose. The Central Government has, therefore, the power to make an order or give a direction so as to remove the difficulty from the very beginning, and that is what the notification of 1956 does. It applies to the assessment of 1951-52; indeed it applies to all assessments made under the Indian Income-tax Act in which paragraph 2 of the Removal of Difficulties Order, 1950, operatesWe think that learned Counsel for the respondent has ignored one essential consideration which clearly vitiates his argument. In the matter of depreciation allowance, the assessees in the three areas in the example given by him do not stand on the same footing; they are not situated alike so as to be entitled to be treated alike. It is obvious that an assessee from an area where there was no income-tax law at all can never say that in the matter of depreciation allowance as respects buildings, machinery, plant etc., he is on a par with a person in an area where there was a law relating to income-tax allowing depreciation on such buildings, machinery, plant etc. The same would be the position with regard to areas where the previous law as to depreciation was different. Indeed, to treat all these persons alike would be tantamount to unequal treatment.It has not been disputed before us that a change in law validly made and applicable to a case pending in appeal must be considered and given effect to by the Appellate Court. The conclusion we have reached is that the notification of 1956 was validly made and applies to the present case. In view of this conclusion we have considered it unnecessary to examine the notification of 1953 or the reasons for which the High Court held that notification to be bad.
| 1 | 3,996 | 989 |
### Instruction:
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S. 12 seems to be that it is for the Central Government to determine if any difficulty of the nature indicated in the section has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive but that does not make the notification of 1956 bad. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1956 SCR 427: (AIR 1958 SC 909 ) we said at page 435: "Now, the authorities are clear that it is not unconstitutional for the Legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like". We are, therefore, of the view that the notification of 1956, was validly made under S. 12 and is not ultra vires the powers conferred on the Central Government by that section. 8. The second question is - does the notification apply to the assessment in the present case, which is an assessment for the year 1951-52 ? The notification was made in 1956 and it added an Explanation to paragraph 2 of the Removal of Difficulties Order, 1950. It says that a particular expression occurring in that paragraph means and shall be deemed always to have meant that aggregate allowance for depreciation taken into account in computing the written down value etc., under any law of a Part B State. The argument on behalf of the respondent is that the law which governs an assessment for the assessment year 1951-52 is the law in force at the time when the Finance Act, 1951, came into force; accordingly, so the argument proceeds, paragraph 2 of the Removal of Difficulties Order, 1950, as it stood on April 28, 1951, when the Finance Act, 1951, came into force, will apply in the present case. We consider this argument to be unsound. The Explanation, though added in 1956, explains the meaning of paragraph 2 of the Removal of Difficulties Order, 1950 and says in express terms that the paragraph shall be deemed always to have had that meaning. Section 12 by the very nature of its intent and purpose confers on the Central Government power to make an order to remove a difficulty which has already arisen, and the power to remove the difficulty must necessarily include the power to remove the difficulty from the time it arose. The Central Government has, therefore, the power to make an order or give a direction so as to remove the difficulty from the very beginning, and that is what the notification of 1956 does. It applies to the assessment of 1951-52; indeed it applies to all assessments made under the Indian Income-tax Act in which paragraph 2 of the Removal of Difficulties Order, 1950, operates. 9. The last challenge to the validity of the notification of 1956 is that it contravenes Art. 14 of the Constitution, because it discriminates between different classes of tax payers. Learned Counsel for the respondent has asked us to consider the cases of assessees in three different areas which subsequently come in a Part B State : in one area there was no law relating to income-tax; in the second there was a law relating to income-tax under which written down value was computed on the basis of depreciation actually allowed year after year, while in the third the written down value was computed in the manner provided under the Hyderabad Income-tax Act; it is pointed out that on the extension of the Indian Income-tax Act (read with paragraph 2 of the Removal of Difficulties Order, 1950 and the Explanation) to those areas, the assessee in the first area will get depreciation allowance on the actual cost; in the second area he will get such allowance on the basis of actual cost less depreciation actually allowed; and in the third area he will get such allowance on the actual cost less depreciation taken into account. It is contended that this resultant discrimination is arbitrary and without any rational justification. We think that learned Counsel for the respondent has ignored one essential consideration which clearly vitiates his argument. In the matter of depreciation allowance, the assessees in the three areas in the example given by him do not stand on the same footing; they are not situated alike so as to be entitled to be treated alike. It is obvious that an assessee from an area where there was no income-tax law at all can never say that in the matter of depreciation allowance as respects buildings, machinery, plant etc., he is on a par with a person in an area where there was a law relating to income-tax allowing depreciation on such buildings, machinery, plant etc. The same would be the position with regard to areas where the previous law as to depreciation was different. Indeed, to treat all these persons alike would be tantamount to unequal treatment. 10. In our view, the notification of 1956 creates no unequal treatment of persons in a like situation; it applies to all who are in a like situation, namely, all those to whom paragraph 2 of the Removal of Difficulties Order, 1950, applies. We consider that the challenge to the notification based on Art. 14 is wholly unsubstantial. 11. It has not been disputed before us that a change in law validly made and applicable to a case pending in appeal must be considered and given effect to by the Appellate Court. The conclusion we have reached is that the notification of 1956 was validly made and applies to the present case. In view of this conclusion we have considered it unnecessary to examine the notification of 1953 or the reasons for which the High Court held that notification to be bad. 12.
### Response:
1
### Explanation:
It is obvious that in applying cl. (b) to an assessee in a Part B State there would be an initial difficulty, inasmuch as prior to 1950 when the Indian Income-tax Act came into force in a Part B State no depreciation could have been actually allowed to such an assessee under the Income-tax Act or under any Act repealed thereby; for example, the Hyderabad Income-tax Act was repealed by the Finance Act, 1950 and not by the Income-tax Act and would not therefore be covered by cl. (b). Such and other difficulties led to the Removal of Difficulties Order, 1950, which has not been seriously challenged before us. Indeed, the High Court said that it was not open to the respondent to challenge the validity of the Removal of Difficulties Order, 1950, because such a point was not taken before the TribunalThe basic and normal scheme of depreciation under the Indian Income-tax Act is that it decreases every year, being a percentage of the written down value which in the first year is the actual cost and in succeeding years actual cost less all depreciation actually allowed under the Income-tax Act or any Act repealed thereby etc. The Hyderabad Income-tax Act not having been repealed by the Income-tax Act but by the Finance Act, 1950, there was a difficulty in allowing depreciation to an assessee in Part B State in the first year of assessment under the Indian Income-tax Act. This difficulty was sought to be removed by paragraph 2 of the Removal of Difficulties Order, 1950. If, however, depreciation actually allowed under the Hyderabad Income-tax Act was taken into account in computing the aggregate depreciation allowance and the written down value, an anomalous result would follow as in the present case, namely, depreciation allowance to be allowed to the assessee in the accounting year under the Indian Income-tax Act would be more than what was allowed in previous years under the Hyderabad Income-tax ActThis would create a disparity and be against the scheme of the Income-tax Act. It was therefore necessary to explain paragraph 2 of the Removal of Difficulties Order, 1950, to assimilate or harmonise the position regarding depreciation allowance, and the Explanation added in 1953 or 1956 was obviously intended to remove the difficulty arising out of that disparity or disharmonyThe notification was made in 1956 and it added an Explanation to paragraph 2 of the Removal of Difficulties Order, 1950. It says that a particular expression occurring in that paragraph means and shall be deemed always to have meant that aggregate allowance for depreciation taken into account in computing the written down value etc., under any law of a Part B State. The argument on behalf of the respondent is that the law which governs an assessment for the assessment year 1951-52 is the law in force at the time when the Finance Act, 1951, came into force; accordingly, so the argument proceeds, paragraph 2 of the Removal of Difficulties Order, 1950, as it stood on April 28, 1951, when the Finance Act, 1951, came into force, will apply in the present case. We consider this argument to be unsound. The Explanation, though added in 1956, explains the meaning of paragraph 2 of the Removal of Difficulties Order, 1950 and says in express terms that the paragraph shall be deemed always to have had that meaning. Section 12 by the very nature of its intent and purpose confers on the Central Government power to make an order to remove a difficulty which has already arisen, and the power to remove the difficulty must necessarily include the power to remove the difficulty from the time it arose. The Central Government has, therefore, the power to make an order or give a direction so as to remove the difficulty from the very beginning, and that is what the notification of 1956 does. It applies to the assessment of 1951-52; indeed it applies to all assessments made under the Indian Income-tax Act in which paragraph 2 of the Removal of Difficulties Order, 1950, operatesWe think that learned Counsel for the respondent has ignored one essential consideration which clearly vitiates his argument. In the matter of depreciation allowance, the assessees in the three areas in the example given by him do not stand on the same footing; they are not situated alike so as to be entitled to be treated alike. It is obvious that an assessee from an area where there was no income-tax law at all can never say that in the matter of depreciation allowance as respects buildings, machinery, plant etc., he is on a par with a person in an area where there was a law relating to income-tax allowing depreciation on such buildings, machinery, plant etc. The same would be the position with regard to areas where the previous law as to depreciation was different. Indeed, to treat all these persons alike would be tantamount to unequal treatment.It has not been disputed before us that a change in law validly made and applicable to a case pending in appeal must be considered and given effect to by the Appellate Court. The conclusion we have reached is that the notification of 1956 was validly made and applies to the present case. In view of this conclusion we have considered it unnecessary to examine the notification of 1953 or the reasons for which the High Court held that notification to be bad.
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Kantha Vibhag Yuva Koli Samaj Parivartan Trust and Others Vs. State of Gujarat and Others
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the jurisdiction of the NGT under Section 14, since it relates to the implementation of the SWM Rules. The SWM Rules have been notified pursuant to the powers conferred by Sections 3, 6 and 25 of the Environment (Protection) Act 1986, which is Entry 5 in Schedule I of the NGT Act. None of the prayers sought by the appellants are of a nature that cannot be granted by the NGT in accordance with its powers under Section 15(1) of the NGT Act. The OA was being continuously heard by the Western Zone Bench of the NGT since August 2014, and it had already issued significant interim directions. 13. Hence, the issue before us is only whether the Principal Bench of the NGT correctly directed the appellants to now approach one of the Committees set up by it, rather than continue with the proceedings in the OA. To understand this, we must first consider the role of such committees which are set up by courts and tribunals alike. 14. It is first important to differentiate expert committees which are set by the courts/tribunals from those set up by the Government in exercise of executive powers or under a particular statute. The latter are set up due to their technical expertise in a given area, and their reports are, subject to judicially observed restraints, open to judicial review before courts when decisions are taken solely based upon them. The precedents of this court unanimously note that courts should be circumspect in rejecting the opinion of these committees, unless they find their decision to be manifestly arbitrary or mala fide [Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372 (in relation to appointment in an academic institution); State of Kerala v. RDS Project Ltd., (2020) 9 SCC 108 (in relation to safety of a flyover project)]. On the other hand, courts/tribunals themselves set up expert committees on occasion. These committees are set up because the fact-finding exercise in many matters can be complex, technical and time-consuming, and may often require the committees to conduct field visits. These committees are set up with specific terms of reference outlining their mandate, and their reports have to conform to the mandate. Once these committees submit their final reports to the court/tribunal, it is open to the parties to object to them, which is then adjudicated upon. The role of these expert committees does not substitute the adjudicatory role of the court or tribunal. The role of an expert committee appointed by an adjudicatory forum is only to assist it in the exercise of adjudicatory functions by providing them better data and factual clarity, which is also open to challenge by all concerned parties. Allowing for objections to be raised and considered makes the process fair and participatory for all stakeholders. 15. Sections 14 and Section 15 entrust adjudicatory functions to the NGT. The NGT is a specialized body comprising of judicial and expert members. Judicial members bring to bear their experience in adjudicating cases. On the other hand, expert members bring into the decision-making process scientific knowledge on issues concerning the environment. In Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401, a twoJudge Bench of this Court noted that the NGT is an expert adjudicatory body on the environment. The Court held: 133. The NGT Act provides for the constitution of a tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment… 134. NGT is an expert adjudicatory body on the environment. The NGT does not have a dearth of expertise when it comes to the issues of environment. 16. Section 15 empowers the NGT to award compensation to the victims of pollution and for environmental damage, to provide for restitution of property which has been damaged and for the restitution of the environment. The NGT cannot abdicate its jurisdiction by entrusting these core adjudicatory functions to administrative expert committees. Expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role. But adjudication under the statute is entrusted to the NGT and cannot be delegated to administrative authorities. Adjudicatory functions assigned to courts and tribunals cannot be hived off to administrative committees. In Sanghar Zuber Ismail v. Ministry of Environment, Forests and Climate Change and Another 2021 SCC OnLine SC 669, a three-Judge Bench of this Court noted that the NGT cannot refuse to hear a challenge to an Environmental Clearance under Section 16(h) of the NGT Act and delegate the process of adjudicating on compliance to an expert committee. The Court held: 8…the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal. 17. The NGT has in the present case abdicated its jurisdiction and entrusted judicial functions to an administrative expert committee. An expert committee may be able to assist the NGT, for instance, by carrying out a fact-finding exercise, but the adjudication has to be by the NGT. This is not a delegable function. Thus, the order impugned in the appeal cannot be sustained. The consequence of the impugned order is to efface the meticulous exercise which was carried out by the earlier Benches. Valuable time has been lost in the meantime and crucial issues pertaining to the environment in the present case have been placed on the back-burner.
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1[ds]11. In Mantri Techzone (P) Ltd. v. Forward Foundation (2019) 18 SCC 494, a three-Judge Bench of this Court outlined that Section 15(1)(c) of the NGT Act entrusts broad powers to the NGT. Speaking for the Court, Justice S Abdul Nazeer held:43. Section 15(1)(c) of the Act is an entire island of power and jurisdiction read with Section 20 of the Act. The principles of sustainable development, precautionary principle and polluter pays, propounded by this Court by way of multiple judicial pronouncements, have now been embedded as a bedrock of environmental jurisprudence under the NGT Act. Therefore, wherever the environment and ecology are being compromised and jeopardized, the Tribunal can apply Section 20 for taking restorative measures in the interest of the environment.12. The OA filed by the appellants raised issues falling within the jurisdiction of the NGT under Section 14, since it relates to the implementation of the SWM Rules. The SWM Rules have been notified pursuant to the powers conferred by Sections 3, 6 and 25 of the Environment (Protection) Act 1986, which is Entry 5 in Schedule I of the NGT Act. None of the prayers sought by the appellants are of a nature that cannot be granted by the NGT in accordance with its powers under Section 15(1) of the NGT Act. The OA was being continuously heard by the Western Zone Bench of the NGT since August 2014, and it had already issued significant interim directions.In Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401, a twoJudge Bench of this Court noted that the NGT is an expert adjudicatory body on the environment. The Court held:133. The NGT Act provides for the constitution of a tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment…134. NGT is an expert adjudicatory body on the environment.The NGT does not have a dearth of expertise when it comes to the issues of environment.16. Section 15 empowers the NGT to award compensation to the victims of pollution and for environmental damage, to provide for restitution of property which has been damaged and for the restitution of the environment. The NGT cannot abdicate its jurisdiction by entrusting these core adjudicatory functions to administrative expert committees. Expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role. But adjudication under the statute is entrusted to the NGT and cannot be delegated to administrative authorities. Adjudicatory functions assigned to courts and tribunals cannot be hived off to administrative committees. In Sanghar Zuber Ismail v. Ministry of Environment, Forests and Climate Change and Another 2021 SCC OnLine SC 669, a three-Judge Bench of this Court noted that the NGT cannot refuse to hear a challenge to an Environmental Clearance under Section 16(h) of the NGT Act and delegate the process of adjudicating on compliance to an expert committee. The Court held:8…the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal.17. The NGT has in the present case abdicated its jurisdiction and entrusted judicial functions to an administrative expert committee. An expert committee may be able to assist the NGT, for instance, by carrying out a fact-finding exercise, but the adjudication has to be by the NGT. This is not a delegable function. Thus, the order impugned in the appeal cannot be sustained. The consequence of the impugned order is to efface the meticulous exercise which was carried out by the earlier Benches. Valuable time has been lost in the meantime and crucial issues pertaining to the environment in the present case have been placed on the back-burner.
| 1 | 3,759 | 806 |
### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the jurisdiction of the NGT under Section 14, since it relates to the implementation of the SWM Rules. The SWM Rules have been notified pursuant to the powers conferred by Sections 3, 6 and 25 of the Environment (Protection) Act 1986, which is Entry 5 in Schedule I of the NGT Act. None of the prayers sought by the appellants are of a nature that cannot be granted by the NGT in accordance with its powers under Section 15(1) of the NGT Act. The OA was being continuously heard by the Western Zone Bench of the NGT since August 2014, and it had already issued significant interim directions. 13. Hence, the issue before us is only whether the Principal Bench of the NGT correctly directed the appellants to now approach one of the Committees set up by it, rather than continue with the proceedings in the OA. To understand this, we must first consider the role of such committees which are set up by courts and tribunals alike. 14. It is first important to differentiate expert committees which are set by the courts/tribunals from those set up by the Government in exercise of executive powers or under a particular statute. The latter are set up due to their technical expertise in a given area, and their reports are, subject to judicially observed restraints, open to judicial review before courts when decisions are taken solely based upon them. The precedents of this court unanimously note that courts should be circumspect in rejecting the opinion of these committees, unless they find their decision to be manifestly arbitrary or mala fide [Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372 (in relation to appointment in an academic institution); State of Kerala v. RDS Project Ltd., (2020) 9 SCC 108 (in relation to safety of a flyover project)]. On the other hand, courts/tribunals themselves set up expert committees on occasion. These committees are set up because the fact-finding exercise in many matters can be complex, technical and time-consuming, and may often require the committees to conduct field visits. These committees are set up with specific terms of reference outlining their mandate, and their reports have to conform to the mandate. Once these committees submit their final reports to the court/tribunal, it is open to the parties to object to them, which is then adjudicated upon. The role of these expert committees does not substitute the adjudicatory role of the court or tribunal. The role of an expert committee appointed by an adjudicatory forum is only to assist it in the exercise of adjudicatory functions by providing them better data and factual clarity, which is also open to challenge by all concerned parties. Allowing for objections to be raised and considered makes the process fair and participatory for all stakeholders. 15. Sections 14 and Section 15 entrust adjudicatory functions to the NGT. The NGT is a specialized body comprising of judicial and expert members. Judicial members bring to bear their experience in adjudicating cases. On the other hand, expert members bring into the decision-making process scientific knowledge on issues concerning the environment. In Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401, a twoJudge Bench of this Court noted that the NGT is an expert adjudicatory body on the environment. The Court held: 133. The NGT Act provides for the constitution of a tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment… 134. NGT is an expert adjudicatory body on the environment. The NGT does not have a dearth of expertise when it comes to the issues of environment. 16. Section 15 empowers the NGT to award compensation to the victims of pollution and for environmental damage, to provide for restitution of property which has been damaged and for the restitution of the environment. The NGT cannot abdicate its jurisdiction by entrusting these core adjudicatory functions to administrative expert committees. Expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role. But adjudication under the statute is entrusted to the NGT and cannot be delegated to administrative authorities. Adjudicatory functions assigned to courts and tribunals cannot be hived off to administrative committees. In Sanghar Zuber Ismail v. Ministry of Environment, Forests and Climate Change and Another 2021 SCC OnLine SC 669, a three-Judge Bench of this Court noted that the NGT cannot refuse to hear a challenge to an Environmental Clearance under Section 16(h) of the NGT Act and delegate the process of adjudicating on compliance to an expert committee. The Court held: 8…the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal. 17. The NGT has in the present case abdicated its jurisdiction and entrusted judicial functions to an administrative expert committee. An expert committee may be able to assist the NGT, for instance, by carrying out a fact-finding exercise, but the adjudication has to be by the NGT. This is not a delegable function. Thus, the order impugned in the appeal cannot be sustained. The consequence of the impugned order is to efface the meticulous exercise which was carried out by the earlier Benches. Valuable time has been lost in the meantime and crucial issues pertaining to the environment in the present case have been placed on the back-burner.
### Response:
1
### Explanation:
11. In Mantri Techzone (P) Ltd. v. Forward Foundation (2019) 18 SCC 494, a three-Judge Bench of this Court outlined that Section 15(1)(c) of the NGT Act entrusts broad powers to the NGT. Speaking for the Court, Justice S Abdul Nazeer held:43. Section 15(1)(c) of the Act is an entire island of power and jurisdiction read with Section 20 of the Act. The principles of sustainable development, precautionary principle and polluter pays, propounded by this Court by way of multiple judicial pronouncements, have now been embedded as a bedrock of environmental jurisprudence under the NGT Act. Therefore, wherever the environment and ecology are being compromised and jeopardized, the Tribunal can apply Section 20 for taking restorative measures in the interest of the environment.12. The OA filed by the appellants raised issues falling within the jurisdiction of the NGT under Section 14, since it relates to the implementation of the SWM Rules. The SWM Rules have been notified pursuant to the powers conferred by Sections 3, 6 and 25 of the Environment (Protection) Act 1986, which is Entry 5 in Schedule I of the NGT Act. None of the prayers sought by the appellants are of a nature that cannot be granted by the NGT in accordance with its powers under Section 15(1) of the NGT Act. The OA was being continuously heard by the Western Zone Bench of the NGT since August 2014, and it had already issued significant interim directions.In Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401, a twoJudge Bench of this Court noted that the NGT is an expert adjudicatory body on the environment. The Court held:133. The NGT Act provides for the constitution of a tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment…134. NGT is an expert adjudicatory body on the environment.The NGT does not have a dearth of expertise when it comes to the issues of environment.16. Section 15 empowers the NGT to award compensation to the victims of pollution and for environmental damage, to provide for restitution of property which has been damaged and for the restitution of the environment. The NGT cannot abdicate its jurisdiction by entrusting these core adjudicatory functions to administrative expert committees. Expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role. But adjudication under the statute is entrusted to the NGT and cannot be delegated to administrative authorities. Adjudicatory functions assigned to courts and tribunals cannot be hived off to administrative committees. In Sanghar Zuber Ismail v. Ministry of Environment, Forests and Climate Change and Another 2021 SCC OnLine SC 669, a three-Judge Bench of this Court noted that the NGT cannot refuse to hear a challenge to an Environmental Clearance under Section 16(h) of the NGT Act and delegate the process of adjudicating on compliance to an expert committee. The Court held:8…the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal.17. The NGT has in the present case abdicated its jurisdiction and entrusted judicial functions to an administrative expert committee. An expert committee may be able to assist the NGT, for instance, by carrying out a fact-finding exercise, but the adjudication has to be by the NGT. This is not a delegable function. Thus, the order impugned in the appeal cannot be sustained. The consequence of the impugned order is to efface the meticulous exercise which was carried out by the earlier Benches. Valuable time has been lost in the meantime and crucial issues pertaining to the environment in the present case have been placed on the back-burner.
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The State Of Goa Vs. M/S.Colfax Laboratories (I) Ltd.
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in entertaining an application from Colfax for reclassifying its products, issuing a notice to it to show cause why its request should not be rejected and thereafter passing an order on 23.3.1985 classifying the ASL as a medicinal preparation and not as a toilet preparation under the Act. There was no requirement in law to issue a show cause notice before rejecting such an application. There being no provision for a prior classification of product under the Medicinal and Toilet Preparations (Excise Duties) Act and the Rules made thereunder the entire proceedings commenced on the basis of the application given by Colfax and culminating with the order of the Commissioner of Excise are wholly without jurisdiction. The order passed by the Commissioner of Excise on 23.3.1985 being without jurisdiction is a nullity in the eyes of law and is liable to be ignored. 18. Rule 11 of the Rules will apply when duties or charge have been short levied through inadvertence, error, collusion or misconstruction on the part of an excise officer or through misstatement as to the quantity or description of such goods on the part of the owner. After the order dated 23.3.1985 had been passed by the Commissioner of Excise, Goa, the concerned Excise Officer who made the relevant entries in Form A.R.-2 submitted by Colfax could not have taken a different view and had to proceed on the footing that ASL was a medicinal preparation. Being a subordinate officer he was fully bound by the order of the highest excise authority of the State. Thereafter, till 1991 when notices were issued and the matter was finally decided by the Excise Commissioner, he had to proceed treating the ASL as medicinal preparation. In the fact situation, the concerned Excise Officer who made entries in Form AR-12 will be the Excise Officer for the purposes of Rule 11 and 12 as the matter was not dealt with by any other authority. In such circumstances it cannot be held that the duties or charge had been short levied through inadvertence, error, collusion or misconstruction on the part of the concerned Excise Officer or through misstatement as to the quantity or description of such goods on the part of the owner. Collusion means a secret agreement for a fraudulent purpose or a secret or dishonest arrangement in fraud of the rights of another. It is a deceitful agreement between two or more persons for some evil purpose, such as to defraud a third person of his rights. The concerned Excise officer who made the relevant entries in Form A.R.-2 and cleared the goods at the spot being a subordinate officer had absolutely no option but to act in accordance with the order dated 23.3.1985 of the Commissioner of Excise. In these circumstances Rule 11 of the Rules can have no application to the facts of the case. Rule 12 confers residuary powers for recovery of sums due to Government. It provides that where the Rules do not make any specific provision for the collection of any duty or of any deficiency in duty, if the duty has, for any reason, been short levied or of any other sum of any kind payable to the collecting Government under the Act or the Rules, such duty, deficiency in duty or sum shall, on written demand made by the appropriate officer be paid to such person and at such time and place as the proper officer may specify. There being no specific provision for a case like the present one for collection f duty which has been short levied, the provisions of Rule 12 of the Rules will be applicable. There is no period of limitation prescribed under Rule 12. In view of the fact that the order dated 23.3.1985 of the Commissioner of Excise was an order passed wholly without jurisdiction and consequently was a nullity, the Government is entitled to recover the deficiency in duty w.e.f. the said date. The ratio of Collector of Central Excise vs. Cotspun Ltd., 1997 (7) SCC 633, reliance on which was placed by Shri Desai, can have no application here as the said case turned on the interpretation of Rules 10, 173-B and 173-C of Central Excise Rules, 1944, whereunder the whole scheme is different as discussed earlier. The view taken by the Excise Commissioner on this point in his order dated 12.8.1998 is, therefore, perfectly correct. The High Court clearly erred in setting aside the order of the Excise Commissioner and in directing that the notices be treated to have been issued under Rule 11 of the Rules. The order passed by the High Court in this regard is, therefore, liable to be set aside. 19. The third point relates to the quantification of duties done by the Excise Commissioner. The learned senior counsel for Colfax has submitted that in case of a product which ahs a cum-duty price, the assessment is required to be done on the basis of wholesale price less excise duty payable, as provided under Section 4(4)(d)(ii) of the Central Excise Act, 1944. Learned Additional Solicitor and learned Advocate General for the State of Goa have urged tha the charge annexed to the show cause notices takes into account the prices indicated by the manufacturer after excluding the duty and its on this price that the excise duty has to be worked out. The High Court has placed reliance upon a decision of this Court in Govt. of India vs. Madras Rubber Factory, 1975 (77) ELT 433 for computation of assessable value in a cum-duty price. It has held that the phrase ad valorem appearing in the column rate of duty in the Schedule appended to the Act refers to the value of the excisable goods and, therefore, it will have to be worked out by applying the formula as laid down in Section 4(4)(d) of Central Excise Act. We are of the opinion that the view taken by the High Court is perfectly correct and calls for no interference.
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0[ds]The process of shaving does not cause any kind of impairment of the normal state of a person. it does not in any manner interrupt or modify the performance of any vital functions of the human body. Many people have been shaving regularly every day for 40-50 years but no one has ever suffered any kind of a disease. If the process of shaving would have resulted in some kind of a disease, the best preventive measure to be adopted was not a shave. The number of persons who shave every day and have been shaving for years would run into crores even in our own country and except for a very insignificant percentage thereof, who belong to affluent class, no one uses any after shave lotion. But they have not suffered any disease. Therefore, on a plain interpretation of the statutory provisions an after shave lotion cannot come within the the ambit of a medicinal preparation as defined in Section 2(g) of the Act.The Excise Commissioner, Goa, after a detailed consideration of scientific and technical material, has recorded a finding that ASLs manufactured by Colfax are toilet preparations within the meaning of Section 2(k) of the Act. The High Court has also examined the matter threadbare and has arrived at the same finding. We find absolutely no reason to disagree with the view taken by the Excise Commissioner, who is an expert in the field. Therefore, the contention raised by learned counsel for Colfax that Old Spice and Blue Stratos ASLs are medicinal preparations and not toilet preparations, has no substance and has to beview of the fact that the order dated 23.3.1985 of the Commissioner of Excise was an order passed wholly without jurisdiction and consequently was a nullity, the Government is entitled to recover the deficiency in duty w.e.f. the said date. Theview taken by the Excise Commissioner on this point in his order dated 12.8.1998 is, therefore, perfectly correct. The High Court clearly erred in setting aside the order of the Excise Commissioner and in directing that the notices be treated to have been issued under Rule 11 of the Rules. The order passed by the High Court in this regard is, therefore, liable to be setbeing no provision for a prior classification of product under the Medicinal and Toilet Preparations (Excise Duties) Act and the Rules made thereunder the entire proceedings commenced on the basis of the application given by Colfax and culminating with the order of the Commissioner of Excise are wholly without jurisdiction. The order passed by the Commissioner of Excise on 23.3.1985 being without jurisdiction is a nullity in the eyes of law and is liable to beHigh Court has placed reliance upon a decision of this Court in Govt. of India vs. Madras Rubber Factory, 1975 (77) ELT 433 for computation of assessable value in a cum-duty price. It has held that the phrase ad valorem appearing in the column rate of duty in the Schedule appended to the Act refers to the value of the excisable goods and, therefore, it will have to be worked out by applying the formula as laid down in Section 4(4)(d) of Central Excise Act. We are of the opinion that the view taken by the High Court is perfectly correct and calls for no
| 0 | 7,196 | 606 |
### 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 entertaining an application from Colfax for reclassifying its products, issuing a notice to it to show cause why its request should not be rejected and thereafter passing an order on 23.3.1985 classifying the ASL as a medicinal preparation and not as a toilet preparation under the Act. There was no requirement in law to issue a show cause notice before rejecting such an application. There being no provision for a prior classification of product under the Medicinal and Toilet Preparations (Excise Duties) Act and the Rules made thereunder the entire proceedings commenced on the basis of the application given by Colfax and culminating with the order of the Commissioner of Excise are wholly without jurisdiction. The order passed by the Commissioner of Excise on 23.3.1985 being without jurisdiction is a nullity in the eyes of law and is liable to be ignored. 18. Rule 11 of the Rules will apply when duties or charge have been short levied through inadvertence, error, collusion or misconstruction on the part of an excise officer or through misstatement as to the quantity or description of such goods on the part of the owner. After the order dated 23.3.1985 had been passed by the Commissioner of Excise, Goa, the concerned Excise Officer who made the relevant entries in Form A.R.-2 submitted by Colfax could not have taken a different view and had to proceed on the footing that ASL was a medicinal preparation. Being a subordinate officer he was fully bound by the order of the highest excise authority of the State. Thereafter, till 1991 when notices were issued and the matter was finally decided by the Excise Commissioner, he had to proceed treating the ASL as medicinal preparation. In the fact situation, the concerned Excise Officer who made entries in Form AR-12 will be the Excise Officer for the purposes of Rule 11 and 12 as the matter was not dealt with by any other authority. In such circumstances it cannot be held that the duties or charge had been short levied through inadvertence, error, collusion or misconstruction on the part of the concerned Excise Officer or through misstatement as to the quantity or description of such goods on the part of the owner. Collusion means a secret agreement for a fraudulent purpose or a secret or dishonest arrangement in fraud of the rights of another. It is a deceitful agreement between two or more persons for some evil purpose, such as to defraud a third person of his rights. The concerned Excise officer who made the relevant entries in Form A.R.-2 and cleared the goods at the spot being a subordinate officer had absolutely no option but to act in accordance with the order dated 23.3.1985 of the Commissioner of Excise. In these circumstances Rule 11 of the Rules can have no application to the facts of the case. Rule 12 confers residuary powers for recovery of sums due to Government. It provides that where the Rules do not make any specific provision for the collection of any duty or of any deficiency in duty, if the duty has, for any reason, been short levied or of any other sum of any kind payable to the collecting Government under the Act or the Rules, such duty, deficiency in duty or sum shall, on written demand made by the appropriate officer be paid to such person and at such time and place as the proper officer may specify. There being no specific provision for a case like the present one for collection f duty which has been short levied, the provisions of Rule 12 of the Rules will be applicable. There is no period of limitation prescribed under Rule 12. In view of the fact that the order dated 23.3.1985 of the Commissioner of Excise was an order passed wholly without jurisdiction and consequently was a nullity, the Government is entitled to recover the deficiency in duty w.e.f. the said date. The ratio of Collector of Central Excise vs. Cotspun Ltd., 1997 (7) SCC 633, reliance on which was placed by Shri Desai, can have no application here as the said case turned on the interpretation of Rules 10, 173-B and 173-C of Central Excise Rules, 1944, whereunder the whole scheme is different as discussed earlier. The view taken by the Excise Commissioner on this point in his order dated 12.8.1998 is, therefore, perfectly correct. The High Court clearly erred in setting aside the order of the Excise Commissioner and in directing that the notices be treated to have been issued under Rule 11 of the Rules. The order passed by the High Court in this regard is, therefore, liable to be set aside. 19. The third point relates to the quantification of duties done by the Excise Commissioner. The learned senior counsel for Colfax has submitted that in case of a product which ahs a cum-duty price, the assessment is required to be done on the basis of wholesale price less excise duty payable, as provided under Section 4(4)(d)(ii) of the Central Excise Act, 1944. Learned Additional Solicitor and learned Advocate General for the State of Goa have urged tha the charge annexed to the show cause notices takes into account the prices indicated by the manufacturer after excluding the duty and its on this price that the excise duty has to be worked out. The High Court has placed reliance upon a decision of this Court in Govt. of India vs. Madras Rubber Factory, 1975 (77) ELT 433 for computation of assessable value in a cum-duty price. It has held that the phrase ad valorem appearing in the column rate of duty in the Schedule appended to the Act refers to the value of the excisable goods and, therefore, it will have to be worked out by applying the formula as laid down in Section 4(4)(d) of Central Excise Act. We are of the opinion that the view taken by the High Court is perfectly correct and calls for no interference.
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### Explanation:
The process of shaving does not cause any kind of impairment of the normal state of a person. it does not in any manner interrupt or modify the performance of any vital functions of the human body. Many people have been shaving regularly every day for 40-50 years but no one has ever suffered any kind of a disease. If the process of shaving would have resulted in some kind of a disease, the best preventive measure to be adopted was not a shave. The number of persons who shave every day and have been shaving for years would run into crores even in our own country and except for a very insignificant percentage thereof, who belong to affluent class, no one uses any after shave lotion. But they have not suffered any disease. Therefore, on a plain interpretation of the statutory provisions an after shave lotion cannot come within the the ambit of a medicinal preparation as defined in Section 2(g) of the Act.The Excise Commissioner, Goa, after a detailed consideration of scientific and technical material, has recorded a finding that ASLs manufactured by Colfax are toilet preparations within the meaning of Section 2(k) of the Act. The High Court has also examined the matter threadbare and has arrived at the same finding. We find absolutely no reason to disagree with the view taken by the Excise Commissioner, who is an expert in the field. Therefore, the contention raised by learned counsel for Colfax that Old Spice and Blue Stratos ASLs are medicinal preparations and not toilet preparations, has no substance and has to beview of the fact that the order dated 23.3.1985 of the Commissioner of Excise was an order passed wholly without jurisdiction and consequently was a nullity, the Government is entitled to recover the deficiency in duty w.e.f. the said date. Theview taken by the Excise Commissioner on this point in his order dated 12.8.1998 is, therefore, perfectly correct. The High Court clearly erred in setting aside the order of the Excise Commissioner and in directing that the notices be treated to have been issued under Rule 11 of the Rules. The order passed by the High Court in this regard is, therefore, liable to be setbeing no provision for a prior classification of product under the Medicinal and Toilet Preparations (Excise Duties) Act and the Rules made thereunder the entire proceedings commenced on the basis of the application given by Colfax and culminating with the order of the Commissioner of Excise are wholly without jurisdiction. The order passed by the Commissioner of Excise on 23.3.1985 being without jurisdiction is a nullity in the eyes of law and is liable to beHigh Court has placed reliance upon a decision of this Court in Govt. of India vs. Madras Rubber Factory, 1975 (77) ELT 433 for computation of assessable value in a cum-duty price. It has held that the phrase ad valorem appearing in the column rate of duty in the Schedule appended to the Act refers to the value of the excisable goods and, therefore, it will have to be worked out by applying the formula as laid down in Section 4(4)(d) of Central Excise Act. We are of the opinion that the view taken by the High Court is perfectly correct and calls for no
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Govind Hanumantha Rao Desai Vs. Nagappa Alias Narahari Laxman Rao Deshpande And & 7 Ors
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division of status that had taken place in his family. Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Others v. Ramkrishna Krishnarao, [AIR 1952 Bom 463 ] in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis. It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint. The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu Law text or by any decision of this Court or the Judicial Committee. The decision of the Judicial Committee in Anant Bhikappa Patil, Minor v. Shankar Ramchandra Patil, [70 IA 232] relied on by the High Court did not consider that question. It is true that some of the observations of Chief Justice Stone in Bajirao and Others v. Ramkrishan, [ILR 1941 Nag 707] does support the view taken by the Bombay High Court. But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive fathers family cannot divest the properties that had vested in the other co-parceners. It may be noted that in the course of his judgment, the learned Chief Justice observed :"There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from joint Hindu family unless the family can be wholly disrupted and finally brought to an end. We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The existing male members can separate off; they can take away their share. They cannot prejudice by partitioning the rights of the after-born male member whether the birth is natural or legal. If in point of fact, before this arrival, the existing co-parceners have partitioned the new arrival can obtain a re-opening of the partition and thereby get his share. How that share is to be calculated in various circumstance need not be decided here." These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court. The decision of the Full Bench of the Madras High Court in K. R. Sankaralingam Pillai and Another v. Veluchami Pillai, Minor, [ILR 1943 Mad 309] relied on by Bombay High Court merely laid down that an adopted son entitled to reopen partition entered into in the family of his adoptive father, before his adoption. That position is no more open to question and was not questioned in this appeal. We are only concerned with the quantum of share to which the plaintiff is entitled. Our attention has not been invited to any decision which supports the view taken by the Bombay High Court. We see no justification to accept that view. 10. Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father. Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications. Hindu widows in the past were proverbially long lived because of the child marriage system. Adoptions might take place and have taken place more than half a century affect the death of the adoptive father. Meanwhile the other co-parceners might have dealt with the family property on the basis of the then existing rights. They might have alienated the property. We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis. 11. This Court in Shrinivas Krishnarao Kangos case (supra), has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested. It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collaterals estate, divesting the property that had already vest in some-one else. But the rule laid down by this Court in that case is such wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion. The rights of an adopted son cannot be more than that of his adoptive father. If the plaintiffs adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties. It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date. In our judgment the plaintiffs claim for a half share in the family properties is unsustainable.
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0[ds]Even before the plaintiff was adopted into the family, there was a partition between Krishna Rao and Lakshmana Rao. The genuineness of that partition is no more in dispute. After the partition Krishna Rao became absolutely entitled to his share of the properties and hence he was entitled to deal with that property in the manner he thought the best. As mentioned earlier he had bequeathed his properties to others. But it was urged on behalf of the appellant that his adoption dates back to the date of the death of his adoptive father, Ranga Rao. By a fiction of law, he must be deemed to have been in existence, when Krishna Rao and Lakshmana Rao divided the properties amongst themselves. The said partition having been effected without his joinder, the same has to be ignored. Hence he is entitled to a half share in the properties. Alternatively, it was contended that the plaintiff is entitled to get by succession half share in the properties that fell to the share of Krishna Rao8. Before proceeding to examine the decided cases referred to at the time of the arguments, let us proceed to examine the question on first principles. It is true that by a fiction of law - well settled by decided cases - that an adopted son is deemed to have been adopted on the date of the death of his adoptive father. He is the continuator of his adoptive fathers line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has a retrospective effect. Whenever the adoption may be made there is no hiatus in the continuity of the line. From that it follows that the appellant must deemed to have been adopted in 1912. Consequently he is deemed to have been a co-parcener in his adoptive fathers family when Krishna Rao and Lakshmana Rao partitioned the properties. The partition having been effected without his consent, it is not binding on him. But from this it does not follow that Krishna Rao and Lakshmana Rao did not separate from the family at the time of the partition. It was open to Krishna Rao and Lakshmana Rao to separate themselves from the family. Once they did separate, the appellant and his adoptive mother alone must be deemed to have continued as the members of the family. It is true that because the plaintiffs adoptive mother was alive, the family cannot be said to have come to an end on the date of partition. But that cannot be said to have come to an end on the date of partition. But that does not mean that Krishna Rao and Lakshmana Rao did not separate from the family. When the partition took place in 1933, the appellant even if he was a co-parcener on that day could have only got 1/3rd share. We fail to see how his position can be said to have improved merely because he was adopted subsequent to the date of partition. It is true that because he was not a party to the partition, he is entitled to ask for reopening of the partition and have his share worked out without reference to that partition. But so far as the quantum of his share is concerned, it must be determined after taking into consideration the fact that Krishna Rao and Lakshmana Rao separated from the family in 1933. The alternative contention of the appellant referred to earlier is also untenable firstly because Krishna Rao disposed of his share of the properties by means of a will and secondly even if he had not disposed of his share of the property, the same would have devolved on Lakshmana Rao by succession and the property that had once vested by succession cannot be divested as in that property the plaintiffs adoptive father had no right of his own. The doctrine of relation back is only a legal fiction. There is no justification to logically extend that fiction. In fact the plaintiff had nothing to do with his adoptive fathers family when Krishna Rao died. On that day his adoptive father was not alive. The devolution of Krishna Raos property must be held to have taken place at the very moment Krishna Rao died. We know of no legal fiction under which it can be said to have been in a suspended animation till the plaintiff was adopted9. This takes us to the decided cases. A long line of decisions has firmly laid down that an adoption dates back to the date of the adoptive father. It is not necessary to refer to the catena of decisions on this point. Suffice it to refer to the decision of this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and others. [(1955) 1 SCR 1 : AIR 1954 SC 379 ]. But that fiction by itself does not help the plaintiff. That fiction merely enables him to establish that he must be deemed to have been in existence on the date of the death of his adoptive father. Division of status need not be effected by bilateral agreement. It can be effected by an unilateral declaration by a co-parcener if the same is properly communicated. Therefore it was within the power of Krishna Rao and Lakshmana Rao to separate themselves from the family and in fact they did so in 1933. We see no basis for the contention of the appellant that he can ignore the events that took place in 1933. He can no doubt ignore the actual partition by metes and bounds effected by Krishna Rao and Lakshmana Rao and ask for a repartition of the properties but his adoption by itself does not and cannot re-unite the divided family. It is one thing to say that an adopted son can ignore a partition effected prior to his adoption, which affects his rights and it is a different thing to say that his adoption wipes out the division of status that had taken place in his family. Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Others v. Ramkrishna Krishnarao, [AIR 1952 Bom 463 ] in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis. It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint. The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu Law text or by any decision of this Court or the Judicial Committee. The decision of the Judicial Committee in Anant Bhikappa Patil, Minor v. Shankar Ramchandra Patil, [70 IA 232] relied on by the High Court did not consider that question. It is true that some of the observations of Chief Justice Stone in Bajirao and Others v. Ramkrishan, [ILR 1941 Nag 707] does support the view taken by the Bombay High Court. But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive fathers family cannot divest the properties that had vested in the other co-parceners. It may be noted that in the course of his judgment, the learned Chief Justice observed :"There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from joint Hindu family unless the family can be wholly disrupted and finally brought to an end. We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The existing male members can separate off; they can take away their share. They cannot prejudice by partitioning the rights of the after-born male member whether the birth is natural or legal. If in point of fact, before this arrival, the existing co-parceners have partitioned the new arrival can obtain a re-opening of the partition and thereby get his share. How that share is to be calculated in various circumstance need not be decided here."These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court. The decision of the Full Bench of the Madras High Court in K. R. Sankaralingam Pillai and Another v. Veluchami Pillai, Minor, [ILR 1943 Mad 309] relied on by Bombay High Court merely laid down that an adopted son entitled to reopen partition entered into in the family of his adoptive father, before his adoption. That position is no more open to question and was not questioned in this appeal. We are only concerned with the quantum of share to which the plaintiff is entitled. Our attention has not been invited to any decision which supports the view taken by the Bombay High Court. We see no justification to accept that view10. Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father. Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications. Hindu widows in the past were proverbially long lived because of the child marriage system. Adoptions might take place and have taken place more than half a century affect the death of the adoptive father. Meanwhile the other co-parceners might have dealt with the family property on the basis of the then existing rights. They might have alienated the property. We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis11. This Court in Shrinivas Krishnarao Kangos case (supra), has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested. It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collaterals estate, divesting the property that had already vest in some-one else. But the rule laid down by this Court in that case is such wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion. The rights of an adopted son cannot be more than that of his adoptive father. If the plaintiffs adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties. It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date. In our judgment the plaintiffs claim for a half share in the family properties is unsustainable.
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### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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division of status that had taken place in his family. Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Others v. Ramkrishna Krishnarao, [AIR 1952 Bom 463 ] in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis. It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint. The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu Law text or by any decision of this Court or the Judicial Committee. The decision of the Judicial Committee in Anant Bhikappa Patil, Minor v. Shankar Ramchandra Patil, [70 IA 232] relied on by the High Court did not consider that question. It is true that some of the observations of Chief Justice Stone in Bajirao and Others v. Ramkrishan, [ILR 1941 Nag 707] does support the view taken by the Bombay High Court. But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive fathers family cannot divest the properties that had vested in the other co-parceners. It may be noted that in the course of his judgment, the learned Chief Justice observed :"There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from joint Hindu family unless the family can be wholly disrupted and finally brought to an end. We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The existing male members can separate off; they can take away their share. They cannot prejudice by partitioning the rights of the after-born male member whether the birth is natural or legal. If in point of fact, before this arrival, the existing co-parceners have partitioned the new arrival can obtain a re-opening of the partition and thereby get his share. How that share is to be calculated in various circumstance need not be decided here." These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court. The decision of the Full Bench of the Madras High Court in K. R. Sankaralingam Pillai and Another v. Veluchami Pillai, Minor, [ILR 1943 Mad 309] relied on by Bombay High Court merely laid down that an adopted son entitled to reopen partition entered into in the family of his adoptive father, before his adoption. That position is no more open to question and was not questioned in this appeal. We are only concerned with the quantum of share to which the plaintiff is entitled. Our attention has not been invited to any decision which supports the view taken by the Bombay High Court. We see no justification to accept that view. 10. Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father. Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications. Hindu widows in the past were proverbially long lived because of the child marriage system. Adoptions might take place and have taken place more than half a century affect the death of the adoptive father. Meanwhile the other co-parceners might have dealt with the family property on the basis of the then existing rights. They might have alienated the property. We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis. 11. This Court in Shrinivas Krishnarao Kangos case (supra), has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested. It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collaterals estate, divesting the property that had already vest in some-one else. But the rule laid down by this Court in that case is such wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion. The rights of an adopted son cannot be more than that of his adoptive father. If the plaintiffs adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties. It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date. In our judgment the plaintiffs claim for a half share in the family properties is unsustainable.
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### Explanation:
out the division of status that had taken place in his family. Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Others v. Ramkrishna Krishnarao, [AIR 1952 Bom 463 ] in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis. It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint. The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu Law text or by any decision of this Court or the Judicial Committee. The decision of the Judicial Committee in Anant Bhikappa Patil, Minor v. Shankar Ramchandra Patil, [70 IA 232] relied on by the High Court did not consider that question. It is true that some of the observations of Chief Justice Stone in Bajirao and Others v. Ramkrishan, [ILR 1941 Nag 707] does support the view taken by the Bombay High Court. But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive fathers family cannot divest the properties that had vested in the other co-parceners. It may be noted that in the course of his judgment, the learned Chief Justice observed :"There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from joint Hindu family unless the family can be wholly disrupted and finally brought to an end. We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The existing male members can separate off; they can take away their share. They cannot prejudice by partitioning the rights of the after-born male member whether the birth is natural or legal. If in point of fact, before this arrival, the existing co-parceners have partitioned the new arrival can obtain a re-opening of the partition and thereby get his share. How that share is to be calculated in various circumstance need not be decided here."These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court. The decision of the Full Bench of the Madras High Court in K. R. Sankaralingam Pillai and Another v. Veluchami Pillai, Minor, [ILR 1943 Mad 309] relied on by Bombay High Court merely laid down that an adopted son entitled to reopen partition entered into in the family of his adoptive father, before his adoption. That position is no more open to question and was not questioned in this appeal. We are only concerned with the quantum of share to which the plaintiff is entitled. Our attention has not been invited to any decision which supports the view taken by the Bombay High Court. We see no justification to accept that view10. Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father. Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications. Hindu widows in the past were proverbially long lived because of the child marriage system. Adoptions might take place and have taken place more than half a century affect the death of the adoptive father. Meanwhile the other co-parceners might have dealt with the family property on the basis of the then existing rights. They might have alienated the property. We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis11. This Court in Shrinivas Krishnarao Kangos case (supra), has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father. But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested cannot be divested. It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collaterals estate, divesting the property that had already vest in some-one else. But the rule laid down by this Court in that case is such wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion. The rights of an adopted son cannot be more than that of his adoptive father. If the plaintiffs adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties. It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date. In our judgment the plaintiffs claim for a half share in the family properties is unsustainable.
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Shanti Sports Club Vs. Union Of India
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9 SCC 94 , Union of India v. International Trading Co. (2003) 5 SCC 437 , Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337 , Sanjay Kumar Munjal v. Chairman, UPSC (2006) 8 SCC 42 , K.K. Bhalla v. State of M.P. and others (2006) 3 SCC 581 , National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93 , Vice Chancellor, M.D. University, Rohtak v. Jahan Singh (2007) 5 SCC 77 , State of Kerala and others v. K. Prasad and another (2007) 7 SCC 140 , Punjab State Electricity Board and others v. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589. 52. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. – K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506 , Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762 , M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464 , Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733 , M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208. 53. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
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0[ds]37. As a result of the above discussion, we hold that the noting recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decision of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may, authenticated in the manner provided in Articles 77(2) and 166(2) and is communicated to the affected persons. The notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor made basis for seeking relief. Even if the competent authority records noting in the file, which indicates that some decision has been taken by the concerned authority, the same can always be reviewed by the same authority or reversed oror overruled by higher functionary/authority in the Government.38. Reverting to the case in hand, we find that representation made on behalf of appellant No.1 was examined by different functionaries of the Government and DDA. On 8.6.1999, the then Minister for Urban Development recorded a note in the file that extensive construction has taken place and this must have been possible with the cooperation of the concerned officers and opined that no demolition can or will be ordered as per the policy. He then recorded that suitable terms for regularization be settled by negotiations and left the matter there for consideration by his successor. That noting was never translated into an order nor the same was published in the official gazette in the form of a notification. It was not even communicated to the appellants or DDA. The reason for this is not far to seek. The Minister had himself left the matter for consideration and decision by his successor. The latter finally decided on 14.7.1999 that the appellants request forof the land cannot be accepted because the development was carried out after its acquisition and also because the land is required for a public purpose, i.e, Vasant Kunj Residential Project, which was held up due to prolonged litigation. This being the position, the appellants cannot rely upon the note recorded by the then Minister on 8.6.1999 for pleading before the Court that the Government had taken decision to withdraw from the acquisition of land in question in terms of Section 48(1) of the Act.39. Before leaving this part of the discussion, we consider it necessary to observe that there have been several cases of exercise of power under Section 48(1) of the Act for extraneous considerations defeating the very purpose of acquisition. Two such instances have been considered by this Court in Chandra Bansi Singh v. State of Bihar (1984) 4 SCC 316 and Rajasthan Housing Board v. Sri Kishan (supra). The facts of Chandra Bansi Singhs case were that on 19.8.1974, the Government of Bihar issued notification under Section 4 for acquisition of 1034.94 acres of land in village Digha for the purpose of construction of houses by the Bihar State Housing Board. After consideration of objections, declaration under Section 6 was issued and published on 20.2.1976. On 8.11.1976, a representation was made by one Mr. Ram Avtar Shastri, Member of Parliament for withdrawing the acquisition proceedings. The same was rejected in December, 1976. However, before compensation could be disbursed to the land owners, general elections were announced and, therefore, the matter was deferred and put in cold storage. On 24.5.1980, 4.03 acres land belonging to Pandey families was released from acquisition. In the same year, a writ petition was filed in the High Court challenging release of land in favour of Pandey families but the same was withdrawn. In May 1981, another writ petition was filed on the same subject and it was pleaded that release of land in favour of Pandey families is violative of Article 14 of the Constitution. The State Government supported the release of land in favour of Pandey families by asserting that they had put up buildings with boundary walls in the entire area covered by 4.03 acres and that it would have been difficult for government to demolish the construction. This was controverted by the petitioner, who produced several photographs to show that no huge buildings or houses were constructed and only small hutment had been put up on the land. After considering the entire record, this Court ruled that release of land in favour of Pandey families was pure and simple act of favouritism without there being any legal or constitutional justification for the same and declared the action of the State Government to be violative of Article 14 of the Constitution. The Court also declared that the entire acquisition will be deemed to be valid and the land released to Pandey families would form part of the acquisition initiated vide notification dated 19.8.1974.In our opinion, the Governments decision not to withdraw from the acquisition of land in question orthe acquired land, does not suffer from the vice of discrimination or arbitrary exercise of power or non application of mind. With due deference to the Full Bench of the High Court which disposed of the batch of writ petitions and miscellaneous applications, the observations contained in the last part of paragraph 182 of the judgment suggesting that the petitioner/applicant can make representation for release of the land and the concerned authorities can examine whether the sports complex could serve the purpose of acquiring the land for the particular scheme or the scheme can be modified or amended in respect of the land in question were nothing more than pious hope and the Government rightly did not take them seriously because in the same paragraph the Full Bench unequivocally ruled that the land is required for residential scheme of Vasant Kunj and the sports complex built by the applicant was not in consonance with the public purpose for which the land was earmarked in the scheme. The statement made by the counsel representing the State before this Court which finds mention in paragraph 21 of the judgment in Murari v. Union of India (supra) was neither here nor there. It did not amount to a commitment on behalf of the Government that representations made for release of land will receive favourable consideration. In any case, once this Court had made it clear in Murari v. Union of India (supra) that in a matter involving acquisition of thousands of acres of land, it would not be proper to leave out some small portions here and there over which some construction may have been made, the decision of the Government not to withdraw from the acquisition of the land in question cannot be faulted.43. The appellants plea that the Government ought to have denotified the land covered by the sports complex because the same has been built by spending crores of rupees and is being used by a large section of people sounds attractive, but, after having given serious thought to the entire matter, we are convinced that the Government rightly refused to exercise discretion under Section 48(1) of the Act forthe acquired land and the High Court did not commit any error whatsoever by refusing to fall in the trap of alluring argument that demolition of the sports complex built by spending substantial amount will be a waste of national wealth and nobody will be benefited by it. The appellants have not denied the fact that the land on which the sports complex has been constructed was acquired by the Government by issuing notification dated 23.1.1965 under Section 4(1) of the Act, which culminated in the making of award dated 22.12.1980. It is also not their case that the construction activity was started prior to initiation of acquisition proceedings. Rather, their admitted stance is that they came in possession of the land betweeni.e., more than 10 years after finalization of the acquisition proceedings. This being the position, the appellants cannot plead equity and seek courts intervention for protection of the unauthorised constructions raised by them. It is trite to say that once the land is acquired by following due process of law, the same cannot be transferred by the land owner to another person and that any such transfer is void and is not binding on the State. A transferee of the acquired land can, at best, step into the shoes of theand lodge claim for compensationGian Chand v. Gopala and others (1995) 2 SCC 528 , Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others (1997) 1 SCC 37, Yadu Nandan Garg v. State of Rajasthan and others JT (1995) 8 S.C. 179 and Jaipur Development Authority v. Mahavir Housing Coop. Society, Jaipur and others (1996) 11 SCC 229. The distinction between the above reproduced two provisions is that while Section 3 contains an absolute prohibition on transfer of the acquired land by sale, mortgage, gift, lease or otherwise, Section 4 declares that no person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale etc. of any land or part thereof, which is proposed to be acquired in connection with the scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose has been made by the Central Government and the Central Government has not withdrawn from the acquisition under Section 48(1).46. The present case falls within the ambit of Section 3 of the 1972 Act. The land owners and Shri Satish Khosla must have been aware of the prohibition on transfer of the acquired land, but by taking advantage of the stay order passed by the High Court in Writ Petition No.1753/1980, they appear to have entered into some clandestine transaction pursuant to which Shri Satish Khosla acquired possession of the land and proceeded to build the sports complex and commercial facilities to which reference has been made in the order of the Division Bench. We have described the transaction as clandestine because the appellants are conspicuously silent as to how Shri Satish Khosla came in possession of land in question after 35 years of initiation of the acquisition proceedings and 10 years of finalization thereof. During the course of hearing, Shri Mukul Rohtagi, learned senior counsel appearing for the appellants did make a statement that his client were put in possession in furtherance of an agreement of sale, but no document has been produced in support of this statement. Therefore, it is not possible to take cognizance of theagreement of sale. In any case, even if such a transaction did take place, the same will have to be treated as void in view of the express prohibition contained in Section 3 of the 1972 Act.47. Although, the then Minister for Urban Development, who recorded note dated 8.6.1999, was extremely magnanimous to the appellants when he wrote that the extensive construction must have been made with full cooperation of public servants concerned, but having carefully examined the entire record, we have no hesitation to observe that the construction of this magnitude could not have been possible, but for the active connivance of the concerned public servants who turned blind eye to the huge structure being built on the acquired land without any sanctioned plan. We are amazed to note that after having secured some sort of transfer of the acquired land in stark violation of the prohibition contained in Section 3 of the 1972 Act, the appellants could raise massive structure comprising cricket ground, tennis stadium, badminton courts, swimming pool, table tennis room, squash court, etc. and cottages with modern facilities without even submitting building plans for sanction by any competent authority and without being noticed by any of the authorities entrusted with the duty of checking illegal/unauthorised construction. This mystery may perhaps never be solved because the officers responsible for ignoring the blatant violation of Section 3 of the 1972 Act, Delhi Development Authority Act and Building Rules, Regulations andmust have either retired or moved to higher positions in the administration where they will be able to block any inquiry in the matter. Be that as it may, such illegal constructions cannot be protected by the court by nullifying the decision taken by the Government not to withdraw from the acquisition of the land in question.48. At this stage, we may also take cognizance of the commercial activities being undertaken in what has been described by the appellants as sports complex simpliciter. The nature and magnitude of the commercial activities may never have been revealed but for the fact that the officer representing the respondents could bring to the High Courts notice the written statement filed by Shri Satish Khosla in Suit No. 3064/1996M/s. Eli Lilly Ranbaxy Ltd. and others v. Satish Khosla. In that suit, the plaintiff had sought a decree of permanent injunction restraining the defendant from letting out the garden for parties and functions during the currency of lease agreement in respect of cottage no. 6.From what we have noted above, it is crystal clear that the appellants have been undertaking large scale commercial activities in the complex and theirlove for sports has substantial flavor of commerce.50. The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc. exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have beenand before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete evidence before the court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Governments decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration v. Jagjit Singh (1995) 1 SCC 745 , this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. Plot in Section 31A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt. Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her.Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations andwith impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury ofcars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. – K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506 , Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762 , M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464 , Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733 , M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208. 53. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
| 0 | 18,441 | 4,155 |
### 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:
9 SCC 94 , Union of India v. International Trading Co. (2003) 5 SCC 437 , Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337 , Sanjay Kumar Munjal v. Chairman, UPSC (2006) 8 SCC 42 , K.K. Bhalla v. State of M.P. and others (2006) 3 SCC 581 , National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93 , Vice Chancellor, M.D. University, Rohtak v. Jahan Singh (2007) 5 SCC 77 , State of Kerala and others v. K. Prasad and another (2007) 7 SCC 140 , Punjab State Electricity Board and others v. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589. 52. Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. – K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506 , Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762 , M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464 , Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733 , M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208. 53. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
### Response:
0
### Explanation:
the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt. Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her.Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof has been extremely poor and the people have violated the master plans, zoning plans and building regulations andwith impunity. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury ofcars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. – K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506 , Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762 , M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464 , Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733 , M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208. 53. Unfortunately, despite repeated judgments by the this Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus. As and when the courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrong doers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.
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TUTICORIN PORT DEMOCRATIC STAFF UNION Vs. TUTICORIN PORT TRUST
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Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 05.11.2007 passed by the High Court of Judicature at Madras at Chennai in Writ Appeal No.3865 of 2004 whereby the Division Bench of the High Court allowed the writ appeal filed by the respondent herein and set aside the judgment dated 17.06.2004 passed the Single Judge of the High Court in W.P. No.10907 of 1998.2. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.3. By impugned order, the Division Bench of the High Court allowed the appeal filed by the respondent herein and set aside the order dated 17.06.2004 passed by the Single Judge in W.P. No. 10907 of 1998 which was filed by the appellant herein.4. The appellant¬Union of workers filed a writ petition (No.10907 of 1998) against the respondent¬ Tuticorin Port Trust and claimed a relief therein that the employees, who are the members of the appellant (Union) and working in the Canteen run by the Tuticorin Port Trust in their work premises are part and parcel of the Port Trust and, therefore, these employees are entitled to be absorbed and regularized in the services of the Port Trust.5. The Single Judge of the High Court allowed the appellants (Union?s) writ petition and granted the relief claimed therein. The Port Trust felt aggrieved and filed intra court appeal before the Division Bench in the High Court.6. By impugned order, the Division Bench allowed the appeal, set aside the order of the Single Judge and dismissed the appellants writ petition, which has given rise to filing of this appeal by way of special leave in this Court by the Union of the workers working in the Canteen.7. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the appeal filed by the respondent¬Port Trust.8. Heard Mr. Trideep Pais, learned counsel for the appellant¬Union and Mr. R. Nedumaran, learned counsel for the respondent¬Trust.9. 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 orders passed by the Division Bench and also of the Single Bench, remand the case to the writ court (Single Judge) for deciding the writ petition filed by the appellant-Union afresh on merits in accordance with law.10. In our considered opinion, the need to remand the case is called for due to the reason that the appellant has filed various documents in support of their appeal. The appellant filed these documents for the first time in this appeal.11. In other words, though the writ court allowed the writ petition and the Division Bench dismissed the writ appeal resulting in passing conflicting orders, but the respective Courts rendered both the decisions without examining these documents. In our view, these documents are material for disposal of the writ petition filed by the appellant.12. It is for this reason, we are of the view that the matter has to be remitted to the writ court for deciding the writ petition afresh on merits.
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1[ds]9. 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 orders passed by the Division Bench and also of the Single Bench, remand the case to the writ court (Single Judge) for deciding the writ petition filed by the appellant-Union afresh on merits in accordance with law.10. In our considered opinion, the need to remand the case is called for due to the reason that the appellant has filed various documents in support of their appeal. The appellant filed these documents for the first time in this appeal.11. In other words, though the writ court allowed the writ petition and the Division Bench dismissed the writ appeal resulting in passing conflicting orders, but the respective Courts rendered both the decisions without examining these documents. In our view, these documents are material for disposal of the writ petition filed by the appellant.12. It is for this reason, we are of the view that the matter has to be remitted to the writ court for deciding the writ petition afresh on merits.
| 1 | 575 | 210 |
### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 05.11.2007 passed by the High Court of Judicature at Madras at Chennai in Writ Appeal No.3865 of 2004 whereby the Division Bench of the High Court allowed the writ appeal filed by the respondent herein and set aside the judgment dated 17.06.2004 passed the Single Judge of the High Court in W.P. No.10907 of 1998.2. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.3. By impugned order, the Division Bench of the High Court allowed the appeal filed by the respondent herein and set aside the order dated 17.06.2004 passed by the Single Judge in W.P. No. 10907 of 1998 which was filed by the appellant herein.4. The appellant¬Union of workers filed a writ petition (No.10907 of 1998) against the respondent¬ Tuticorin Port Trust and claimed a relief therein that the employees, who are the members of the appellant (Union) and working in the Canteen run by the Tuticorin Port Trust in their work premises are part and parcel of the Port Trust and, therefore, these employees are entitled to be absorbed and regularized in the services of the Port Trust.5. The Single Judge of the High Court allowed the appellants (Union?s) writ petition and granted the relief claimed therein. The Port Trust felt aggrieved and filed intra court appeal before the Division Bench in the High Court.6. By impugned order, the Division Bench allowed the appeal, set aside the order of the Single Judge and dismissed the appellants writ petition, which has given rise to filing of this appeal by way of special leave in this Court by the Union of the workers working in the Canteen.7. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the appeal filed by the respondent¬Port Trust.8. Heard Mr. Trideep Pais, learned counsel for the appellant¬Union and Mr. R. Nedumaran, learned counsel for the respondent¬Trust.9. 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 orders passed by the Division Bench and also of the Single Bench, remand the case to the writ court (Single Judge) for deciding the writ petition filed by the appellant-Union afresh on merits in accordance with law.10. In our considered opinion, the need to remand the case is called for due to the reason that the appellant has filed various documents in support of their appeal. The appellant filed these documents for the first time in this appeal.11. In other words, though the writ court allowed the writ petition and the Division Bench dismissed the writ appeal resulting in passing conflicting orders, but the respective Courts rendered both the decisions without examining these documents. In our view, these documents are material for disposal of the writ petition filed by the appellant.12. It is for this reason, we are of the view that the matter has to be remitted to the writ court for deciding the writ petition afresh on merits.
### Response:
1
### Explanation:
9. 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 orders passed by the Division Bench and also of the Single Bench, remand the case to the writ court (Single Judge) for deciding the writ petition filed by the appellant-Union afresh on merits in accordance with law.10. In our considered opinion, the need to remand the case is called for due to the reason that the appellant has filed various documents in support of their appeal. The appellant filed these documents for the first time in this appeal.11. In other words, though the writ court allowed the writ petition and the Division Bench dismissed the writ appeal resulting in passing conflicting orders, but the respective Courts rendered both the decisions without examining these documents. In our view, these documents are material for disposal of the writ petition filed by the appellant.12. It is for this reason, we are of the view that the matter has to be remitted to the writ court for deciding the writ petition afresh on merits.
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Sandoz Private Limited & Another Vs. Regional Provident Fund Commissioner-I & Others
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R.Y. Ganoo, J.The aforesaid Writ Petition No.443 of 2012 was filed to challenge the Order dated 30th/31st January, 2012 passed by the Regional Provident Fund Commissioner-I, R.O. Mumbai. By prayer clause (b) it was prayed that the relaxation order dated 17.5.2010 be restored. By prayer clause (c) it was prayed that the respondent no.4 be directed to consider the exemption application dated 10.11.1997 filed by the petitioner no.2 as per Section 17 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF Act) and take decision before 31.3.2012. The other consequential prayers were also sought. This court rejected the aforesaid writ petition by passing order dated 29.2.2012. This order dated 29.2.2012 is the subject mater of this review petition.2. We have heard learned Senior Counsel Mr. K.M.Naik on behalf of the petitioners. The material on record clearly indicates that the petitioners have reported losses during the financial year 2007-2008, 2008-2009 and 2009-2010. On account of the said reporting of losses, the relaxation as per the aforesaid Act granted to the petitioners came to be revoked and the said order of revocation was confirmed by the order dated 30.1.2012 passed by the Regional Provident Fund Commissioner, R.O., Mumbai.3. Learned Senior Counsel Mr. Naik, appearing on behalf of the petitioners contended that by the order under review the court has rejected the petition as regards prayer clause (c). According to learned Senior Counsel Mr. Naik, the power to grant exemption from the said Act vested with the appropriate Government i.e. respondent no.4 and therefore the petition could not have been rejected. It was contended by learned Senior Counsel Mr. Naik that the order be reviewed so that the court entertaining the petition afresh would be able to rule on prayer clause (c).4. We are unable to accept this contention. The condition for grant of exemption from the provisions of EPF Act are set out in the scheme framed under the EPF Act. As per Appendix A to Clause 27AA of the said scheme, if an company reports losses for three consecutive financial years or erosion in their capital base shall have their exemption withdrawn from the first day of the next financial year.5. In our view, once it is noticed that the company is reporting losses for three consecutive financial years, there was no question of the petitioners getting benefit of the provisions of exemption under the EPF Act. In our view, for the aforesaid reasons, order dated 29.2.2012 does not require review.
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0[ds]4. We are unable to accept this contention. The condition for grant of exemption from the provisions of EPF Act are set out in the scheme framed under the EPF Act. As per Appendix A to Clause 27AA of the said scheme, if an company reports losses for three consecutive financial years or erosion in their capital base shall have their exemption withdrawn from the first day of the next financial year.5. In our view, once it is noticed that the company is reporting losses for three consecutive financial years, there was no question of the petitioners getting benefit of the provisions of exemption under the EPF Act. In our view, for the aforesaid reasons, order dated 29.2.2012 does not require review.
| 0 | 458 | 137 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
R.Y. Ganoo, J.The aforesaid Writ Petition No.443 of 2012 was filed to challenge the Order dated 30th/31st January, 2012 passed by the Regional Provident Fund Commissioner-I, R.O. Mumbai. By prayer clause (b) it was prayed that the relaxation order dated 17.5.2010 be restored. By prayer clause (c) it was prayed that the respondent no.4 be directed to consider the exemption application dated 10.11.1997 filed by the petitioner no.2 as per Section 17 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF Act) and take decision before 31.3.2012. The other consequential prayers were also sought. This court rejected the aforesaid writ petition by passing order dated 29.2.2012. This order dated 29.2.2012 is the subject mater of this review petition.2. We have heard learned Senior Counsel Mr. K.M.Naik on behalf of the petitioners. The material on record clearly indicates that the petitioners have reported losses during the financial year 2007-2008, 2008-2009 and 2009-2010. On account of the said reporting of losses, the relaxation as per the aforesaid Act granted to the petitioners came to be revoked and the said order of revocation was confirmed by the order dated 30.1.2012 passed by the Regional Provident Fund Commissioner, R.O., Mumbai.3. Learned Senior Counsel Mr. Naik, appearing on behalf of the petitioners contended that by the order under review the court has rejected the petition as regards prayer clause (c). According to learned Senior Counsel Mr. Naik, the power to grant exemption from the said Act vested with the appropriate Government i.e. respondent no.4 and therefore the petition could not have been rejected. It was contended by learned Senior Counsel Mr. Naik that the order be reviewed so that the court entertaining the petition afresh would be able to rule on prayer clause (c).4. We are unable to accept this contention. The condition for grant of exemption from the provisions of EPF Act are set out in the scheme framed under the EPF Act. As per Appendix A to Clause 27AA of the said scheme, if an company reports losses for three consecutive financial years or erosion in their capital base shall have their exemption withdrawn from the first day of the next financial year.5. In our view, once it is noticed that the company is reporting losses for three consecutive financial years, there was no question of the petitioners getting benefit of the provisions of exemption under the EPF Act. In our view, for the aforesaid reasons, order dated 29.2.2012 does not require review.
### Response:
0
### Explanation:
4. We are unable to accept this contention. The condition for grant of exemption from the provisions of EPF Act are set out in the scheme framed under the EPF Act. As per Appendix A to Clause 27AA of the said scheme, if an company reports losses for three consecutive financial years or erosion in their capital base shall have their exemption withdrawn from the first day of the next financial year.5. In our view, once it is noticed that the company is reporting losses for three consecutive financial years, there was no question of the petitioners getting benefit of the provisions of exemption under the EPF Act. In our view, for the aforesaid reasons, order dated 29.2.2012 does not require review.
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Commissioner of Income Tax, Andhra Pradesh Hyderabad Vs. Toshoku Limited, Guntur Etc
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pay the amount. The Court rejected the contention of the assessee that the Japanese Company was not in receipt of the amount in the taxable territories and the amount was not income within the meaning of section 4(1)(a) of the Indian income-tax Act, 1922 with the following observations:-"This leaves over the question which was earnestly argued, namely, whether the amounts in the two accounting years can be said to be received by the Japanese Company in the taxable territories. The argument is that the money was not actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt cl. (a) cannot apply. We need not consider the fiction, for it is not necessary to go into the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal. The character of the money changed from a debt to a deposit in such the same way as if it was credited in a Bank to the account of the Company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of s. 4(1)(a). Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court w as right in answering the question against the assessee."9. The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on that basis.10. In the cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddis case (supra). It cannot be s aid that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non-residents as the amounts so credited in their favour were not at their disposal or control. It is not possible to hold that the non-resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtors own books does not constitute payment which will secure discharge from the debt. They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.11. The second aspect of the same question is whether the commission amounts credited in the books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non-resident assessees during the relevant year. This takes us to section 9 of the Act. It is urged that the commission amounts should be treated as incomes deemed to have accrued or arisen in India as they, according to the Department, had either accrued or arisen through and from the business connection in India that existed between the non-resident assessees and the statutory agent. This contention overlooks the effect of clause (a) of the Explanation to clause (i) of sub-section (1) of section 9 of the Act which provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India. If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India. If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot b e deemed to accrue or arise in India. (See Commissioner of Income-tax, Punjab v. R. D. Aggarwal &Co. &Anr.(1) and M/s. Carborandum Co. v. C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income-tax Act, 1922, which corresponds to section 9(1)(i) of the Act.)In the instant case the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the Department.12.
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0[ds]The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on thatthe cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddis case (supra). It cannot be s aid that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non-residents as the amounts so credited in their favour were not at their disposal or control. It is not possible to hold that the non-resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtors own books does not constitute payment which will secure discharge from the debt. They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accountingall such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India. If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot b e deemed to accrue or arise in India. (See Commissioner of Income-tax, Punjab v. R. D. Aggarwal &Co. &Anr.(1) and M/s. Carborandum Co. v. C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income-tax Act, 1922, which corresponds to section 9(1)(i) of the Act.)In the instant case the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the Department.
| 0 | 2,782 | 537 |
### 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:
pay the amount. The Court rejected the contention of the assessee that the Japanese Company was not in receipt of the amount in the taxable territories and the amount was not income within the meaning of section 4(1)(a) of the Indian income-tax Act, 1922 with the following observations:-"This leaves over the question which was earnestly argued, namely, whether the amounts in the two accounting years can be said to be received by the Japanese Company in the taxable territories. The argument is that the money was not actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt cl. (a) cannot apply. We need not consider the fiction, for it is not necessary to go into the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal. The character of the money changed from a debt to a deposit in such the same way as if it was credited in a Bank to the account of the Company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of s. 4(1)(a). Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court w as right in answering the question against the assessee."9. The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on that basis.10. In the cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddis case (supra). It cannot be s aid that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non-residents as the amounts so credited in their favour were not at their disposal or control. It is not possible to hold that the non-resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtors own books does not constitute payment which will secure discharge from the debt. They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.11. The second aspect of the same question is whether the commission amounts credited in the books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non-resident assessees during the relevant year. This takes us to section 9 of the Act. It is urged that the commission amounts should be treated as incomes deemed to have accrued or arisen in India as they, according to the Department, had either accrued or arisen through and from the business connection in India that existed between the non-resident assessees and the statutory agent. This contention overlooks the effect of clause (a) of the Explanation to clause (i) of sub-section (1) of section 9 of the Act which provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India. If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India. If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot b e deemed to accrue or arise in India. (See Commissioner of Income-tax, Punjab v. R. D. Aggarwal &Co. &Anr.(1) and M/s. Carborandum Co. v. C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income-tax Act, 1922, which corresponds to section 9(1)(i) of the Act.)In the instant case the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the Department.12.
### Response:
0
### Explanation:
The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on thatthe cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddis case (supra). It cannot be s aid that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non-residents as the amounts so credited in their favour were not at their disposal or control. It is not possible to hold that the non-resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtors own books does not constitute payment which will secure discharge from the debt. They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accountingall such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India. If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot b e deemed to accrue or arise in India. (See Commissioner of Income-tax, Punjab v. R. D. Aggarwal &Co. &Anr.(1) and M/s. Carborandum Co. v. C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income-tax Act, 1922, which corresponds to section 9(1)(i) of the Act.)In the instant case the non-resident assessees did not carry on any business operations in the taxable territories. They acted as selling agents outside India. The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act. The commission amounts which were earned by the non-resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India. The High Court was, therefore, right in answering the question against the Department.
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Nicholas Piramal India Ltd Vs. Harisingh
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in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council.] Venkatachaliah, J. (as he then was) pointed out that ‘reasonableness’ of the administrator under Article 14 in the context of administrative law has to be judged from the standpoint of Wednesbury rules. In Tata Cellular v. Union of India (SCC at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India, Supreme Court Employees’ Welfare Assn. v. Union of India and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. while judging whether the administrative action is ‘arbitrary’ under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as ‘arbitrary’ under Article 14, the principle of secondary review based on Wednesbury principles applies.” 40. Additionally, the proportionality and punishment in service law has been discussed by this Court in Om Kumar case as follows:“69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of ‘arbitrariness’ of the order of punishment is questioned under Article 14.70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, this Court referred to ‘proportionality’ in the quantum of punishment but the Court observed that the punishment was ‘shockingly’ disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, this Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham.”” Further, in the case of State of Mysore v. K. Manche Gowda (supra), this Court has held thus:- “8…….It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same.” 24. Further, the Labour Court after adverting to the judgments of this Court referred to supra has rightly held that the punishment of dismissal is disproportionate and interfered with the same by imposing the lesser punishment of denial of 50% back wages with reinstatement and the same has been examined and rightly upheld by the Appellate Court and the High Court in exercise of its judicial review power under Article 227 of the Constitution of India. 25. Having regard to the nature of judicial review power conferred upon the High Court, it has rightly accepted the impugned Award passed by the Labour Court which is affirmed by the Appellate Court by recording valid and cogent reasons in the impugned Award/judgment. The same can neither be termed as erroneous nor error in law.26. The workman’s wilful disobedience of lawful or reasonable order under Clause 12(1)(d) of the SSO and the wilful slowing down of the work performance by him has been held to be partially proved. Therefore, the Labour Court has imposed a lesser punishment as against the order of dismissal in exercise of its original jurisdiction and power under Section 107 of the M.P.I.R. Act as the Disciplinary Authority has failed to give any valid reasons for not imposing any one of the lesser punishments as provided under Clause 12 (3)(b)(i) to (v) of SSO. Hence, the denial of 50% back wages to the workman by the Labour Court is itself a punishment imposed upon the workman as held by this Court in the case of Jitendra Singh Rathor (supra), upon which reliance has been rightly placed by the learned counsel for the respondent- workman. The contention urged on behalf of the appellant-Company that the award of back wages in the absence of any plea and evidence by the respondent-workman that he was not gainfully employed cannot be accepted by us in view of the decision in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors (2013) 10 SCC 324 ). delivered by this Court to which one of us, (Justice V. Gopala Gowda), is a party to the judgment.27. For the reasons stated supra, we do not find any good reason to interfere with the impugned judgment and Awards of the High Court as well as the Appellate Court and the Labour Court.
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0[ds]25. Having regard to the nature of judicial review power conferred upon the High Court, it has rightly accepted the impugned Award passed by the Labour Court which is affirmed by the Appellate Court by recording valid and cogent reasons in the impugned Award/judgment. The same can neither be termed as erroneous nor error in law.26. Thewilful disobedience of lawful or reasonable order under Clause 12(1)(d) of the SSO and the wilful slowing down of the work performance by him has been held to be partially proved. Therefore, the Labour Court has imposed a lesser punishment as against the order of dismissal in exercise of its original jurisdiction and power under Section 107 of the M.P.I.R. Act as the Disciplinary Authority has failed to give any valid reasons for not imposing any one of the lesser punishments as provided under Clause 12 (3)(b)(i) to (v) of SSO. Hence, the denial of 50% back wages to the workman by the Labour Court is itself a punishment imposed upon the workman as held by this Court in the case of Jitendra Singh Rathor (supra), upon which reliance has been rightly placed by the learned counsel for the respondentworkman. The contention urged on behalf of thethat the award of back wages in the absence of any plea and evidence by thethat he was not gainfully employed cannot be accepted by us in view of the decision in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors (2013) 10 SCC 324 ). delivered by this Court to which one of us, (Justice V. Gopala Gowda), is a party to the judgment.27. For the reasons stated supra, we do not find any good reason to interfere with the impugned judgment and Awards of the High Court as well as the Appellate Court and the Labour Court.The first point is required to be answered in favour of thefor the followingLabour Court at the first instance has erroneously failed to exercise its jurisdiction by notthe evidence on record after holding that the preliminary issue regarding the domestic enquiry conducted by theis legal and valid. The said erroneous finding was challenged by thein the Appellate Court after two remand orders were passed by the Industrial Court. Ultimately, the Labour Court has exercised its jurisdiction and onof the facts and the evidence on record and in accordance with the decision of this Court in The Workmen of M/s. Firestone Tyre & Rubber Company of India (P) Ltd. v. The Management and Ors. (AIR (1973) SC 1227 ), it has found fault with the findings of the Inquiry Officer which was endorsed by the Disciplinary Authority which has erroneously held that the workman was guilty of the misconduct. The Labour Court after the two remand orders has rightly come to the conclusion onof the evidence on record and held that the charge levelled against the respondent is partially proved and even then the order of dismissal imposed upon him by the Disciplinary Authority, has been done without notifying theabout his past service record, as required under Clause 12(3)(b)&(c) of the SSO, which aspect is rightly noticed and answered by the Labour Court at para 20 of its Award dated 29.10.2007. Thus, the order of dismissal of the workman from the service is disproportionate and severe to the gravity of the misconduct.Further, the Labour Court after adverting to the judgments of this Court referred to supra has rightly held that the punishment of dismissal is disproportionate and interfered with the same by imposing the lesser punishment of denial of 50% back wages with reinstatement and the same has been examined and rightly upheld by the Appellate Court and the High Court in exercise of its judicial review power under Article 227 of the Constitution of India.
| 0 | 5,602 | 709 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council.] Venkatachaliah, J. (as he then was) pointed out that ‘reasonableness’ of the administrator under Article 14 in the context of administrative law has to be judged from the standpoint of Wednesbury rules. In Tata Cellular v. Union of India (SCC at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India, Supreme Court Employees’ Welfare Assn. v. Union of India and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. while judging whether the administrative action is ‘arbitrary’ under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as ‘arbitrary’ under Article 14, the principle of secondary review based on Wednesbury principles applies.” 40. Additionally, the proportionality and punishment in service law has been discussed by this Court in Om Kumar case as follows:“69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of ‘arbitrariness’ of the order of punishment is questioned under Article 14.70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, this Court referred to ‘proportionality’ in the quantum of punishment but the Court observed that the punishment was ‘shockingly’ disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, this Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham.”” Further, in the case of State of Mysore v. K. Manche Gowda (supra), this Court has held thus:- “8…….It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same.” 24. Further, the Labour Court after adverting to the judgments of this Court referred to supra has rightly held that the punishment of dismissal is disproportionate and interfered with the same by imposing the lesser punishment of denial of 50% back wages with reinstatement and the same has been examined and rightly upheld by the Appellate Court and the High Court in exercise of its judicial review power under Article 227 of the Constitution of India. 25. Having regard to the nature of judicial review power conferred upon the High Court, it has rightly accepted the impugned Award passed by the Labour Court which is affirmed by the Appellate Court by recording valid and cogent reasons in the impugned Award/judgment. The same can neither be termed as erroneous nor error in law.26. The workman’s wilful disobedience of lawful or reasonable order under Clause 12(1)(d) of the SSO and the wilful slowing down of the work performance by him has been held to be partially proved. Therefore, the Labour Court has imposed a lesser punishment as against the order of dismissal in exercise of its original jurisdiction and power under Section 107 of the M.P.I.R. Act as the Disciplinary Authority has failed to give any valid reasons for not imposing any one of the lesser punishments as provided under Clause 12 (3)(b)(i) to (v) of SSO. Hence, the denial of 50% back wages to the workman by the Labour Court is itself a punishment imposed upon the workman as held by this Court in the case of Jitendra Singh Rathor (supra), upon which reliance has been rightly placed by the learned counsel for the respondent- workman. The contention urged on behalf of the appellant-Company that the award of back wages in the absence of any plea and evidence by the respondent-workman that he was not gainfully employed cannot be accepted by us in view of the decision in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors (2013) 10 SCC 324 ). delivered by this Court to which one of us, (Justice V. Gopala Gowda), is a party to the judgment.27. For the reasons stated supra, we do not find any good reason to interfere with the impugned judgment and Awards of the High Court as well as the Appellate Court and the Labour Court.
### Response:
0
### Explanation:
25. Having regard to the nature of judicial review power conferred upon the High Court, it has rightly accepted the impugned Award passed by the Labour Court which is affirmed by the Appellate Court by recording valid and cogent reasons in the impugned Award/judgment. The same can neither be termed as erroneous nor error in law.26. Thewilful disobedience of lawful or reasonable order under Clause 12(1)(d) of the SSO and the wilful slowing down of the work performance by him has been held to be partially proved. Therefore, the Labour Court has imposed a lesser punishment as against the order of dismissal in exercise of its original jurisdiction and power under Section 107 of the M.P.I.R. Act as the Disciplinary Authority has failed to give any valid reasons for not imposing any one of the lesser punishments as provided under Clause 12 (3)(b)(i) to (v) of SSO. Hence, the denial of 50% back wages to the workman by the Labour Court is itself a punishment imposed upon the workman as held by this Court in the case of Jitendra Singh Rathor (supra), upon which reliance has been rightly placed by the learned counsel for the respondentworkman. The contention urged on behalf of thethat the award of back wages in the absence of any plea and evidence by thethat he was not gainfully employed cannot be accepted by us in view of the decision in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors (2013) 10 SCC 324 ). delivered by this Court to which one of us, (Justice V. Gopala Gowda), is a party to the judgment.27. For the reasons stated supra, we do not find any good reason to interfere with the impugned judgment and Awards of the High Court as well as the Appellate Court and the Labour Court.The first point is required to be answered in favour of thefor the followingLabour Court at the first instance has erroneously failed to exercise its jurisdiction by notthe evidence on record after holding that the preliminary issue regarding the domestic enquiry conducted by theis legal and valid. The said erroneous finding was challenged by thein the Appellate Court after two remand orders were passed by the Industrial Court. Ultimately, the Labour Court has exercised its jurisdiction and onof the facts and the evidence on record and in accordance with the decision of this Court in The Workmen of M/s. Firestone Tyre & Rubber Company of India (P) Ltd. v. The Management and Ors. (AIR (1973) SC 1227 ), it has found fault with the findings of the Inquiry Officer which was endorsed by the Disciplinary Authority which has erroneously held that the workman was guilty of the misconduct. The Labour Court after the two remand orders has rightly come to the conclusion onof the evidence on record and held that the charge levelled against the respondent is partially proved and even then the order of dismissal imposed upon him by the Disciplinary Authority, has been done without notifying theabout his past service record, as required under Clause 12(3)(b)&(c) of the SSO, which aspect is rightly noticed and answered by the Labour Court at para 20 of its Award dated 29.10.2007. Thus, the order of dismissal of the workman from the service is disproportionate and severe to the gravity of the misconduct.Further, the Labour Court after adverting to the judgments of this Court referred to supra has rightly held that the punishment of dismissal is disproportionate and interfered with the same by imposing the lesser punishment of denial of 50% back wages with reinstatement and the same has been examined and rightly upheld by the Appellate Court and the High Court in exercise of its judicial review power under Article 227 of the Constitution of India.
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Avadh Sugar Mills Ltd Vs. The Sales Tax Officer, Sitapur & Another
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Hegde, J.1. This is an appeal by certificate. The only question that arises for decision is whether groundnut is oilseed. The High Court has come to the conclusion that the groundnut is oil-seed. The question as to the nature of groundnut came up for consideration in connection with the levy of purchase tax on the purchase of oil-seed. The assessee in this case is a manufacturer of oil and the assessee appears to have purchased groundnuts in large quantity for the manufacture of oil. He contended before the assessing authorities as well as before the High Court, unsuccessfully, that groundnut is not oilseed. In support of, that contention, he relied on the decision of the Madhya Pradesh High Court in Commr. of Sales Tax, Madhya Pradesh, Indore v. Bakhat Rai and Co. (1966) 18 S.T.C. 285 (Mach Pra) and the decision of a Single Judge of Punjab and Haryana High Court in Hans Raj Choudhri v. J. S. Rajyana, (1967) 19 S.T.C. 489 (Punj) ). These two decisions undoubtedly support his contention. The learned Judges of the Allahabad High Court have not accepted those decisions as laying down the law correctly and we are in agreement with the view taken by the learned Judges of the Allahabad High Court.2. The petitioner in his Writ Petition has definitely stated that he purchased groundnuts mostly from cultivators for the manufacture of oil. Hence there is no doubt that he purchased groundnut for the purpose of manufacturing oil.3. We shall now proceed to consider whether groundnuts are seeds and further whether they are oilseeds. In finding out the true meaning of term "oilseeds" found in the Sales-tax law in question, we are not to refer to dictionaries. We are to find out the meaning ascribed to that term in commercial parlance. (See the decision of this Court in Commr. of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh 19 S.T.C. 469 = (AIR 1967 SC 1454 )). There can hardly be any doubt that in commercial circles groundnut is dealt with as oilseed. The commercial journals and newspapers while quoting the market price of oilseeds list groundnuts as one of the species of oilseeds. From this it is clear that in commercial circles groundnut is treated as oilseed.4. A seed is one which germinates. It is not disputed that the groundnut germinates. Hence it is undoubtedly seed. The next question is whether it is generally used for manufacture of oil. Here again, there can hardly be any doubt that groundnut is mostly used for the manufacture of groundnut oil which is used in the manufacture of Dalda and other cooking media. Groundnut is one of the items which is mostly used in this country for the manufacture of cooking media.5. In our opinion, both the Madhya Pradesh High Court and the Punjab and Haryana High Court were wrong in holding that groundnut is not oilseed
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0[ds]There can hardly be any doubt that in commercial circles groundnut is dealt with as oilseed. The commercial journals and newspapers while quoting the market price of oilseeds list groundnuts as one of the species of oilseeds. From this it is clear that in commercial circles groundnut is treated as oilseed.4. A seed is one which germinates. It is not disputed that the groundnut germinates. Hence it is undoubtedly seed. The next question is whether it is generally used for manufacture of oil. Here again, there can hardly be any doubt that groundnut is mostly used for the manufacture of groundnut oil which is used in the manufacture of Dalda and other cooking media. Groundnut is one of the items which is mostly used in this country for the manufacture of cooking media.5. In our opinion, both the Madhya Pradesh High Court and the Punjab and Haryana High Court were wrong in holding that groundnut is not oilseed
| 0 | 540 | 173 |
### 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:
Hegde, J.1. This is an appeal by certificate. The only question that arises for decision is whether groundnut is oilseed. The High Court has come to the conclusion that the groundnut is oil-seed. The question as to the nature of groundnut came up for consideration in connection with the levy of purchase tax on the purchase of oil-seed. The assessee in this case is a manufacturer of oil and the assessee appears to have purchased groundnuts in large quantity for the manufacture of oil. He contended before the assessing authorities as well as before the High Court, unsuccessfully, that groundnut is not oilseed. In support of, that contention, he relied on the decision of the Madhya Pradesh High Court in Commr. of Sales Tax, Madhya Pradesh, Indore v. Bakhat Rai and Co. (1966) 18 S.T.C. 285 (Mach Pra) and the decision of a Single Judge of Punjab and Haryana High Court in Hans Raj Choudhri v. J. S. Rajyana, (1967) 19 S.T.C. 489 (Punj) ). These two decisions undoubtedly support his contention. The learned Judges of the Allahabad High Court have not accepted those decisions as laying down the law correctly and we are in agreement with the view taken by the learned Judges of the Allahabad High Court.2. The petitioner in his Writ Petition has definitely stated that he purchased groundnuts mostly from cultivators for the manufacture of oil. Hence there is no doubt that he purchased groundnut for the purpose of manufacturing oil.3. We shall now proceed to consider whether groundnuts are seeds and further whether they are oilseeds. In finding out the true meaning of term "oilseeds" found in the Sales-tax law in question, we are not to refer to dictionaries. We are to find out the meaning ascribed to that term in commercial parlance. (See the decision of this Court in Commr. of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh 19 S.T.C. 469 = (AIR 1967 SC 1454 )). There can hardly be any doubt that in commercial circles groundnut is dealt with as oilseed. The commercial journals and newspapers while quoting the market price of oilseeds list groundnuts as one of the species of oilseeds. From this it is clear that in commercial circles groundnut is treated as oilseed.4. A seed is one which germinates. It is not disputed that the groundnut germinates. Hence it is undoubtedly seed. The next question is whether it is generally used for manufacture of oil. Here again, there can hardly be any doubt that groundnut is mostly used for the manufacture of groundnut oil which is used in the manufacture of Dalda and other cooking media. Groundnut is one of the items which is mostly used in this country for the manufacture of cooking media.5. In our opinion, both the Madhya Pradesh High Court and the Punjab and Haryana High Court were wrong in holding that groundnut is not oilseed
### Response:
0
### Explanation:
There can hardly be any doubt that in commercial circles groundnut is dealt with as oilseed. The commercial journals and newspapers while quoting the market price of oilseeds list groundnuts as one of the species of oilseeds. From this it is clear that in commercial circles groundnut is treated as oilseed.4. A seed is one which germinates. It is not disputed that the groundnut germinates. Hence it is undoubtedly seed. The next question is whether it is generally used for manufacture of oil. Here again, there can hardly be any doubt that groundnut is mostly used for the manufacture of groundnut oil which is used in the manufacture of Dalda and other cooking media. Groundnut is one of the items which is mostly used in this country for the manufacture of cooking media.5. In our opinion, both the Madhya Pradesh High Court and the Punjab and Haryana High Court were wrong in holding that groundnut is not oilseed
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COMMITTEE OF MANAGEMENT Vs. SHAH BASIT JAHID
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Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar, JJ. 1. Leave granted. When this matter was listed on 17th November, 2016, this Court had passed the following order:- In course of hearing, we have apprised that objections to the elections held in pursuance of the order passed by the High Court are pending before the Vice-Chancellor of the University, District Inspector of Schools and Assistant Registrar of Societies, Firms and Chits. The three authorities shall decide the objections and take a decision thereon within a period of ten days hence. The parties shall appear before the said authorities on Monday i.e. 21st November, 2016. 2. In pursuance of the aforesaid order, the objections were filed before the competent authorities. Be it noted, as far as the Azamgarh Muslim Education Society (for short, the Society) is concerned, the objections were filed before the Assistant Registrar of Societies, Firms & Chits, Azamgarh. As far as the Committee of Management of the Shibli National Intermediate College is concerned, the objections were filed before the District Inspector of Schools, Azamgarh. The objections relating to Shibli National Post-Graduate College were filed before the Vice-Chancellor of Veer Bahadur Singh Purvanchal University, Jaunpur. 3. Mr. M.R. Shamshad, learned Standing Counsel for the State of U.P. has produced the reports of the said authorities before this Court. Learned counsel for the respondent has taken us through the said reports. 4. On a perusal of the aforesaid reports, we find that 627 members of the Society have been found validly inducted. No finding has been returned with regard to their status as valid voters to participate in the election. We have been apprised in the course of hearing that the valid voters elect the Committee of Management of the Society, the Post-Graduate College and the Intermediate College. To elaborate, the electoral college for each of the Committee of Management is the same. 5. It is not in dispute that the present Committee of Management was elected on 15th February, 2015. The present Committee is the Managing Committee for the Intermediate College. Learned counsel for the appellant has brought to our notice that after the High Court has set aside the election, no fresh election has been held.
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1[ds]4. On a perusal of the aforesaid reports, we find that 627 members of the Society have been found validly inducted. No finding has been returned with regard to their status as valid voters to participate in the election. We have been apprised in the course of hearing that the valid voters elect the Committee of Management of the Society, the Post-Graduate College and the Intermediate College. To elaborate, the electoral college for each of the Committee of Management is the same.5. It is not in dispute that the present Committee of Management was elected on 15th February, 2015. The present Committee is the Managing Committee for the Intermediate College. Learned counsel for the appellant has brought to our notice that after the High Court has set aside the election, no fresh election has been held.
| 1 | 421 | 153 |
### 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:
Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar, JJ. 1. Leave granted. When this matter was listed on 17th November, 2016, this Court had passed the following order:- In course of hearing, we have apprised that objections to the elections held in pursuance of the order passed by the High Court are pending before the Vice-Chancellor of the University, District Inspector of Schools and Assistant Registrar of Societies, Firms and Chits. The three authorities shall decide the objections and take a decision thereon within a period of ten days hence. The parties shall appear before the said authorities on Monday i.e. 21st November, 2016. 2. In pursuance of the aforesaid order, the objections were filed before the competent authorities. Be it noted, as far as the Azamgarh Muslim Education Society (for short, the Society) is concerned, the objections were filed before the Assistant Registrar of Societies, Firms & Chits, Azamgarh. As far as the Committee of Management of the Shibli National Intermediate College is concerned, the objections were filed before the District Inspector of Schools, Azamgarh. The objections relating to Shibli National Post-Graduate College were filed before the Vice-Chancellor of Veer Bahadur Singh Purvanchal University, Jaunpur. 3. Mr. M.R. Shamshad, learned Standing Counsel for the State of U.P. has produced the reports of the said authorities before this Court. Learned counsel for the respondent has taken us through the said reports. 4. On a perusal of the aforesaid reports, we find that 627 members of the Society have been found validly inducted. No finding has been returned with regard to their status as valid voters to participate in the election. We have been apprised in the course of hearing that the valid voters elect the Committee of Management of the Society, the Post-Graduate College and the Intermediate College. To elaborate, the electoral college for each of the Committee of Management is the same. 5. It is not in dispute that the present Committee of Management was elected on 15th February, 2015. The present Committee is the Managing Committee for the Intermediate College. Learned counsel for the appellant has brought to our notice that after the High Court has set aside the election, no fresh election has been held.
### Response:
1
### Explanation:
4. On a perusal of the aforesaid reports, we find that 627 members of the Society have been found validly inducted. No finding has been returned with regard to their status as valid voters to participate in the election. We have been apprised in the course of hearing that the valid voters elect the Committee of Management of the Society, the Post-Graduate College and the Intermediate College. To elaborate, the electoral college for each of the Committee of Management is the same.5. It is not in dispute that the present Committee of Management was elected on 15th February, 2015. The present Committee is the Managing Committee for the Intermediate College. Learned counsel for the appellant has brought to our notice that after the High Court has set aside the election, no fresh election has been held.
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Management Of Lndian Oil Corporation Ltd Vs. Its Workmen
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(AIR 1972 SC 1917 = 1972 Lab IC 1128) where this Court, while pointing out the object of S. 9A, observed as follows:"The real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labours subservience to capital"The observations made by this Court lay down the real test as to the circumstances in which Section 9A would apply. In the instant case, however we are satisfied - (1) that the grant of the compensatory allowance as an implied condition of service; and (2) that by withdrawing this allowance the employer sought to effect a change which adversely and materially affected the service conditions of the workmen. In these circumstances, therefore. Section 9A of the Act was clearly applicable and the non-compliance with the provisions of this section would undoubtedly raise a serious dispute between the parties so as to give jurisdiction to the Tribunal to give the award. If the appellant wanted to withdraw the Assam Compensatory Allowance it should have given notice to the workman, negotiated the matter with them and arrived at some settlement instead of withdrawing the compensatory allowance overnight.11. It was also contended that the compensatory allowance was only an allowance given in substitution for housing subsidy. We are, however, unable to agree with this contention. Mr. Sen Gupta appearing for the respondents rightly pointed out that there is a well-knit and a clear distinction between the compensatory allowance and a housing subsidy or house rent allowance. This distinction is clearly brought out by the Second Pay Commissions Report (1957-59) in which the Commission observed as follows:"The compensatory allowances considered here fall into three broad groups: (i) allowances to meet the high cost of living in certain specially costly cities and other local areas, including hill stations where special requirements such as additional warm clothing and fuel etc., add to the cost of living; (ii) those to compensate for the hardship of service in certain areas, e.g. areas which have a bad climate, or are remote and difficult of access; and (iii) allowances granted in areas, e.g. field service areas, where because of special conditions of living or service, an employee cannot besides other disadvantages have his family with him. There are cases in which more than one of these conditions for grant of a compensatory allowance are fulfilled."The Second Pay Commission also observed:"The rent concessions dealt with here are of two kinds: (i) provision of rent free quarters, or grant of a house rent allowance in lieu thereof; and (ii) grant of a house rent allowance in certain classes of cities to compensate the employees concerned for the specially high rents that have to be paid in those cities. The former is allowed only to such staff as are required to reside on the premises where they have to work, and is thus intended to be a facility necessary to enable an employee to discharge his duties. In some cases, it is a supplement to pay, or substitute for special pay etc., which would have been granted but for the existing of that concession. In either case, it is not related to the expensiveness of a locality. The latter, on the other hand, is a compensatory or a sort of a dearness allowance, intended to cover not the high cost of living as a whole but the prevailing high cost of residential accommodation; and it has no relationship to the nature of an employees duties."The observations made by the Second Pay Commission throw light on this question. In fact the compensatory allowance and housing subsidy are two different and separate categories of the terms of service conditions and they cannot be clubbed together, nor can the one be made dependent on the other. The object of these two concessions is quite different and both of them serve quite different purposes.12. It was next contended that even if Section 9A of the Act applied, the Tribunal should have gone into the question on merits instead of giving the award on the basis of non-compliance with the provisions of Section 9A. This argument also appears to us to be equally untenable. On the facts and circumstances of the present case the only point that fell for determination was whether there was any change in the conditions of service of the workmen and, if so, whether the provisions of Sec. 9A of the Act were duly complied with We cannot conceive of any other point that could have fallen for determination on merits, after the Tribunal held that S. 9A of the Act applied and had not been complied with by the appellant.13. It was also faintly suggested that there was no question of a customary claim or usage because the period during which the compensatory allowance was granted and withdrawn was too short. It is however. not necessary to take any notice of this argument, because counsel for the respondents Mr. Sen Gupta fairly conceded that he had not based his claim on any customary claim at all. It was argued by Mr. Sen Gupta that after the Central Government notification of September 3, 1957, the appellant took an independent and voluntary decision on their own to give the facility of the Assam Compensatory Allowance as an implied term of the contract and having done so they could not wriggle out from the provisions of Section 9A of the Act.
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0[ds]5. As regards the firm contention that the concession of the compensatory allowance was granted to the workers by way of a temporary measure and would not amount to a condition of service, we find absolutely no material on the record to support the same. There is no evidence to show that the management before granting the concession of the compensatory allowance had in any way indicated to the workers that this was only a stop-gap arrangement which could be withdrawn after the housing subsidy was granted. Even before the unilateral withdrawal of the concession granted by the appellant no notice was given to the workers nor were they taken into confidence, nor any attempt was made to open a dialogue with them on this question. Indeed if the circulars of the Central Government are admittedly not binding on the Corporation then we are unable to appreciate the stand taken by the appellant that the management unilaterally withdrew the concession merely because of the Central Government circulars. So far as the compensatory allowance is concerned it was given in order to enable the workers to meet the high cost of living in a far-fetched and backward area like Assam. It had absolutely no causal connection with the housing subsidy or house rent allowance which was a different type of concession. Furthermore, the grant of compensatory allowance by the appellant was indeed a very charitable act which showed that the employers were extremely sympathetic towards the needs of their workers. In these circumstances we have no hesitation in holding that the grant of compensatory allowance was undoubtedly an implied condition of service so as to attract the mandatory provisions of S. 9A of the Act which runs thus:"No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change.-(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or(b) within twenty-one days of giving such notice:Provided............,.."An analysis of Section 9A of the Act clearly shows that this provision comes into operation the moment the employer proposes to change any condition of service applicable to any workman, and once this is done twenty-one days notice has to be given to the workmen. This admittedly was not done in this case. By withdrawing the Assam Compensatory Allowance the employers undoubtedly effected substantial change in the conditions of service, because the workmen were deprived of the compensatory allowance for all times tois true that this Court held on the facts of that case that the Company had abolished one department, but as the work-load was not increased the workers were not adversely affected and the abolition of one department could not be brought under item 11. The contingency contemplated in the aforesaid case, however, cannot be equated with the present case by virtue of the unilateral deprivation of the compensatory allowance which was received by the employees by the withdrawal of which they were undoubtedly prejudiced. It cannot be contended that the sudden withdrawal of a substantial concession in the conditions of service would not materially or adversely affect the workmen. We are therefore, of opinion that the aforesaid case also does not support the contention of the learned counsel for theobservations made by this Court lay down the real test as to the circumstances in which Section 9A would apply. In the instant case, however we are satisfied - (1) that the grant of the compensatory allowance as an implied condition of service; and (2) that by withdrawing this allowance the employer sought to effect a change which adversely and materially affected the service conditions of the workmen. In these circumstances, therefore. Section 9A of the Act was clearly applicable and the non-compliance with the provisions of this section would undoubtedly raise a serious dispute between the parties so as to give jurisdiction to the Tribunal to give the award. If the appellant wanted to withdraw the Assam Compensatory Allowance it should have given notice to the workman, negotiated the matter with them and arrived at some settlement instead of withdrawing the compensatory allowancecannot conceive of any other point that could have fallen for determination on merits, after the Tribunal held that S. 9A of the Act applied and had not been complied with by the appellant.13. It was also faintly suggested that there was no question of a customary claim or usage because the period during which the compensatory allowance was granted and withdrawn was too short. It is however. not necessary to take any notice of this argument, because counsel for the respondents Mr. Sen Gupta fairly conceded that he had not based his claim on any customary claim at all. It was argued by Mr. Sen Gupta that after the Central Government notification of September 3, 1957, the appellant took an independent and voluntary decision on their own to give the facility of the Assam Compensatory Allowance as an implied term of the contract and having done so they could not wriggle out from the provisions of Section 9A of the Act.
| 0 | 3,898 | 937 |
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(AIR 1972 SC 1917 = 1972 Lab IC 1128) where this Court, while pointing out the object of S. 9A, observed as follows:"The real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labours subservience to capital"The observations made by this Court lay down the real test as to the circumstances in which Section 9A would apply. In the instant case, however we are satisfied - (1) that the grant of the compensatory allowance as an implied condition of service; and (2) that by withdrawing this allowance the employer sought to effect a change which adversely and materially affected the service conditions of the workmen. In these circumstances, therefore. Section 9A of the Act was clearly applicable and the non-compliance with the provisions of this section would undoubtedly raise a serious dispute between the parties so as to give jurisdiction to the Tribunal to give the award. If the appellant wanted to withdraw the Assam Compensatory Allowance it should have given notice to the workman, negotiated the matter with them and arrived at some settlement instead of withdrawing the compensatory allowance overnight.11. It was also contended that the compensatory allowance was only an allowance given in substitution for housing subsidy. We are, however, unable to agree with this contention. Mr. Sen Gupta appearing for the respondents rightly pointed out that there is a well-knit and a clear distinction between the compensatory allowance and a housing subsidy or house rent allowance. This distinction is clearly brought out by the Second Pay Commissions Report (1957-59) in which the Commission observed as follows:"The compensatory allowances considered here fall into three broad groups: (i) allowances to meet the high cost of living in certain specially costly cities and other local areas, including hill stations where special requirements such as additional warm clothing and fuel etc., add to the cost of living; (ii) those to compensate for the hardship of service in certain areas, e.g. areas which have a bad climate, or are remote and difficult of access; and (iii) allowances granted in areas, e.g. field service areas, where because of special conditions of living or service, an employee cannot besides other disadvantages have his family with him. There are cases in which more than one of these conditions for grant of a compensatory allowance are fulfilled."The Second Pay Commission also observed:"The rent concessions dealt with here are of two kinds: (i) provision of rent free quarters, or grant of a house rent allowance in lieu thereof; and (ii) grant of a house rent allowance in certain classes of cities to compensate the employees concerned for the specially high rents that have to be paid in those cities. The former is allowed only to such staff as are required to reside on the premises where they have to work, and is thus intended to be a facility necessary to enable an employee to discharge his duties. In some cases, it is a supplement to pay, or substitute for special pay etc., which would have been granted but for the existing of that concession. In either case, it is not related to the expensiveness of a locality. The latter, on the other hand, is a compensatory or a sort of a dearness allowance, intended to cover not the high cost of living as a whole but the prevailing high cost of residential accommodation; and it has no relationship to the nature of an employees duties."The observations made by the Second Pay Commission throw light on this question. In fact the compensatory allowance and housing subsidy are two different and separate categories of the terms of service conditions and they cannot be clubbed together, nor can the one be made dependent on the other. The object of these two concessions is quite different and both of them serve quite different purposes.12. It was next contended that even if Section 9A of the Act applied, the Tribunal should have gone into the question on merits instead of giving the award on the basis of non-compliance with the provisions of Section 9A. This argument also appears to us to be equally untenable. On the facts and circumstances of the present case the only point that fell for determination was whether there was any change in the conditions of service of the workmen and, if so, whether the provisions of Sec. 9A of the Act were duly complied with We cannot conceive of any other point that could have fallen for determination on merits, after the Tribunal held that S. 9A of the Act applied and had not been complied with by the appellant.13. It was also faintly suggested that there was no question of a customary claim or usage because the period during which the compensatory allowance was granted and withdrawn was too short. It is however. not necessary to take any notice of this argument, because counsel for the respondents Mr. Sen Gupta fairly conceded that he had not based his claim on any customary claim at all. It was argued by Mr. Sen Gupta that after the Central Government notification of September 3, 1957, the appellant took an independent and voluntary decision on their own to give the facility of the Assam Compensatory Allowance as an implied term of the contract and having done so they could not wriggle out from the provisions of Section 9A of the Act.
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5. As regards the firm contention that the concession of the compensatory allowance was granted to the workers by way of a temporary measure and would not amount to a condition of service, we find absolutely no material on the record to support the same. There is no evidence to show that the management before granting the concession of the compensatory allowance had in any way indicated to the workers that this was only a stop-gap arrangement which could be withdrawn after the housing subsidy was granted. Even before the unilateral withdrawal of the concession granted by the appellant no notice was given to the workers nor were they taken into confidence, nor any attempt was made to open a dialogue with them on this question. Indeed if the circulars of the Central Government are admittedly not binding on the Corporation then we are unable to appreciate the stand taken by the appellant that the management unilaterally withdrew the concession merely because of the Central Government circulars. So far as the compensatory allowance is concerned it was given in order to enable the workers to meet the high cost of living in a far-fetched and backward area like Assam. It had absolutely no causal connection with the housing subsidy or house rent allowance which was a different type of concession. Furthermore, the grant of compensatory allowance by the appellant was indeed a very charitable act which showed that the employers were extremely sympathetic towards the needs of their workers. In these circumstances we have no hesitation in holding that the grant of compensatory allowance was undoubtedly an implied condition of service so as to attract the mandatory provisions of S. 9A of the Act which runs thus:"No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change.-(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or(b) within twenty-one days of giving such notice:Provided............,.."An analysis of Section 9A of the Act clearly shows that this provision comes into operation the moment the employer proposes to change any condition of service applicable to any workman, and once this is done twenty-one days notice has to be given to the workmen. This admittedly was not done in this case. By withdrawing the Assam Compensatory Allowance the employers undoubtedly effected substantial change in the conditions of service, because the workmen were deprived of the compensatory allowance for all times tois true that this Court held on the facts of that case that the Company had abolished one department, but as the work-load was not increased the workers were not adversely affected and the abolition of one department could not be brought under item 11. The contingency contemplated in the aforesaid case, however, cannot be equated with the present case by virtue of the unilateral deprivation of the compensatory allowance which was received by the employees by the withdrawal of which they were undoubtedly prejudiced. It cannot be contended that the sudden withdrawal of a substantial concession in the conditions of service would not materially or adversely affect the workmen. We are therefore, of opinion that the aforesaid case also does not support the contention of the learned counsel for theobservations made by this Court lay down the real test as to the circumstances in which Section 9A would apply. In the instant case, however we are satisfied - (1) that the grant of the compensatory allowance as an implied condition of service; and (2) that by withdrawing this allowance the employer sought to effect a change which adversely and materially affected the service conditions of the workmen. In these circumstances, therefore. Section 9A of the Act was clearly applicable and the non-compliance with the provisions of this section would undoubtedly raise a serious dispute between the parties so as to give jurisdiction to the Tribunal to give the award. If the appellant wanted to withdraw the Assam Compensatory Allowance it should have given notice to the workman, negotiated the matter with them and arrived at some settlement instead of withdrawing the compensatory allowancecannot conceive of any other point that could have fallen for determination on merits, after the Tribunal held that S. 9A of the Act applied and had not been complied with by the appellant.13. It was also faintly suggested that there was no question of a customary claim or usage because the period during which the compensatory allowance was granted and withdrawn was too short. It is however. not necessary to take any notice of this argument, because counsel for the respondents Mr. Sen Gupta fairly conceded that he had not based his claim on any customary claim at all. It was argued by Mr. Sen Gupta that after the Central Government notification of September 3, 1957, the appellant took an independent and voluntary decision on their own to give the facility of the Assam Compensatory Allowance as an implied term of the contract and having done so they could not wriggle out from the provisions of Section 9A of the Act.
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PARSA KENTA COLLIERIES LTD Vs. RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD
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purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court.
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1[ds]8. At the outset, it is required to be noted that by the impugned judgment and order, the Division Bench of the High Court in exercise of its powers under Section 37 of the Arbitration Act has set aside the award passed by the learned Arbitrator, confirmed by the learned Commercial Court.For convenience, we shall deal with the impugned judgment and order passed by the High Court claim¬wise. The first claim is with respect to ?price adjustment/escalation?; the second claim is with respect to ?fixed costs? and the third claim is with respect to ?escrow account?.11.1 Now so far as the claim with respect to ?price adjustment/escalation? is concerned, the learned arbitrator held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court.
| 1 | 5,427 | 1,230 |
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purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court.
### Response:
1
### Explanation:
purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and therefore zero year for the purpose of price escalation has to be 2011-12. Accordingly, the learned arbitrator considered the escalated price in F.Y. 2013¬14 at Rs.895/- per MT. However, according to the respondent, as the date of commencement was changed from 25.06.2011 to 25.03.2013, the zero year for the purpose of price escalation would be 2013-14. It is required to be noted that it is not in dispute that price escalation is permissible under the contract/agreement itself and there shall be price escalation every year as per the formulae mentioned in the agreement, commencing from the date of commencement. However, it is true that the initial date of commencement, i.e.,25.06.2011 came to be extended to 25.03.2013 by mutual agreement. However, the same was due to force majeure as there was a delay of 21 months in obtaining the forest clearance and environmental clearance. The price was quoted in the year 2007¬ 08, applicable from 2011. However, there was a delay in obtaining the forest clearance and environmental clearance and therefore the date of commencement of supply came to be changed. In between there would be hike in labour charges, transportation charges, etc. Though the date of commencement of supply was extended, there was no corresponding amendment in the relevant clauses of the agreement with respect to price escalation. There was no specific agreement that in the year 2013, the appellant would supply the coal at the same price, without any price escalation. Therefore, considering the overall facts and circumstances of the case and by giving cogent reasons, the learned arbitrator interpreted the relevant clauses of the contract and specifically held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011 and accordingly the zero year for the purpose of price escalation would be 2011¬12 and therefore the appellant shall be entitled to the enhanced amount as is applicable in the year 2013-14 (the price escalation). Having considered the reasoning given by the learned arbitrator, we are of the opinion that the interpretation by the learned arbitrator was both possible as well as plausible. Therefore, merely because some other view could have been taken, the High Court is not justified in interfering with the interpretation made by the arbitrator which as observed was possible and plausible. Therefore, in the facts and circumstances of the case, we are of the opinion that the High Court has clearly exceeded in its jurisdiction in interfering with the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation. At this stage, it is required to be noted that though the High Court has observed that the award passed by the learned arbitrator with respect to claim no.1 was against the public policy, with respect, we do not see any element of public policy. It was pure and simple case of interpretation of the relevant clauses of the agreement which does not involve any public policy. Therefore, we are of the opinion that the impugned judgment and order passed by the High Court for quashing and setting aside the award passed by the learned arbitrator with respect to claim no.1 – price adjustment/escalation cannot be sustained and the same deserves to be quashed and set aside.11.2 Now so far as claim no.2 – ?fixed costs? and an amount of Rs.78 crores awarded by the learned arbitrator with respect to compensation of loss is concerned, having gone through the relevant material on record, we are of the opinion that the High Court has rightly set aside the award passed by the learned arbitrator with respect to claim no.2. Except the CA?s certificate, no further evidence had been led with respect to actual loss. Considering the material on record, it is on the contrary found that in the relevant year the quantity of the coal lifted by the respondent was much above the fixed quantity. Thus, the award passed by the learned arbitrator with respect to claim no.2 was contrary to the evidence on record and therefore is rightly set aside by the High Court.11.3 Similarly, even with respect to claim no.3 – ?Escrow Account? is concerned, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3. It is required to be noted that the escrow account was required to be opened as per the guidelines issued by the Ministry of Coal, Government of India for the preparation of mine closure plant. The guidelines required, inter alia, the mining company to open an escrow account with any schedule bank. Accordingly, the respondent opened an escrow account and executed an escrow agreement. From the correspondence between the parties, it appears that even the appellant consented for opening the escrow account. The appellant also agreed that the amount to be deposited in the escrow account will be recovered by the respondent from immediate next payment of the coal bills of the joint venture company – PKCL raised towards dispatches of coal from appellant?s coal blocks. Thus, thereafter it was not open for the appellant to claim the amount lying in the escrow account. If the amount lying in the escrow account is returned to the appellant, the purpose and object of opening the escrow account which was as per the guidelines of the Ministry of Coal would be frustrated. The object and purpose of opening the escrow account was to see that the appellant company fulfils the contract as per the agreement and till the closure of the coal blocks. Therefore, the High Court has rightly interfered with the award passed by the learned arbitrator with respect to claim no.3 – escrow account by observing that the reasoning is perverse or so irrational that no reasonable person could have arrived at on the material/evidence on record. We are in complete agreement with the view taken by the learned Division Bench of the High Court.
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Patel Roadways Ltd Vs. Birla Yamaha Ltd
|
terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil Court established under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract." 42. This decision is of little assistance to the appellant since the contentions raised by them before us herein were not considered by this Court therein.43. From the conspectus of views taken in the decisions of different High Court noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallized into accepted position of law. No good reason has been borough to our notice to persuade us to make a departure from the accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Shri Ashok Desai learned senior counsel, that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted.44. The question that remains to be considered is whether the principles of law discussed in the preceding paragraph is applicable in a proceeding before the consumer disputes redressal agency, particularly the National Commission. In this regard the contention of Shri Desai is that the use of the term `suit in section 9 of the Carriers Act shows that the provision is applicable only to cases filed in civil Court and does not extend to proceedings before the National Commission which is a forum which is to decide complaints by consumers following a summary procedure. Elucidating the point Shri Desai submitted that in a proceeding before the National Commission the general principle that the burden to prove negligence lies on the party alleging negligence should be applicable though the position may be different in a suit filed in a civil Court. The term "suit" has not been defined in the Carries Act nor is it provided in the said Act that the term "suit" will have the same meaning as in the Civil Procedure Code. Therefore, the ordinary dictionary meaning of the term will have to be taken for ascertaining its meaning. In P. Pamanatha Aiyars Law Lexicon 1997 Edition some of the references of the term are : "Suit - Prosecution of pursuit of some claim, demand or request, the act of suing the process by which one endeavors to gain an end or object; attempt to attain a certain result; the act of suing; the process by which one gains an end or object, and action or process for the recovery of a right or claim; the prosecution of some demand in a Court of Justice; any proceeding in a Court of Justice in which plaintiff pursues his remedy to recover a right or claim; the mode and manner adopted by law to redress civil injuries; a proceeding in a Court of Justice for the enforcement of a right.The word "suit" in Ss. 51 to 55 Act IX of 1879, Court of Wards Act, does not mean only what is usually called a "regular suit." It embraces all contentious proceedings of an ordinary civil kind, whether they arise in a suit or miscellaneous proceedings." Suit Action. "Suit" is a term of wider signification than action it may include proceedings on a petition." 45. Shri Desai also raised a contention on the amount awarded by the National Commission under the impugned order. He urged that the respondent by its conduct led the appellant to believe that the goods entrusted for transportation are insured and having been led by such representation the appellant had not insured the goods. This, according to Shri Desai is a circumstance which should be taken as a mitigating factor for quantification of the damage. In the impugned order the National Commission taking not of the stipulations in the delivery receipt which was signed by both the parties, confined the amount of damages to the value of the consignment destroyednot delivered. This contention in our view needs no in-depth consideration for the reason that there is no material placed before us to show that at the time of booking of the consignment any representation as stated by Shri Desai was given by the respondent to the appellant. Shri Shanti Bhushan pointed out that the question regarding insuring the consignment was raised after the incident of non-deliver or loss of the consignment took place when the respondent asked the appellant to issue a certificate of non-delivery of the consignments. Then the respondent ascertained though it had insured all its consignments in bulk the amount stated in the policy had been exceeded by the date the consignments in question were booked, and therefore the insurance policy was not of any avail so far as non-deliveryloss of the consignments in question is concerned. It follows that this contention raised by Shri Desai is also to be rejected.
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0[ds]25. From the provisions of the Consumer Protection Act noted in the foregoing paragraph the position is clear that the consumer disputes redressal agencies, i.e., District Forums, State Commissions and the National Commission are vested with powers of adjudication of all types of consumer disputes. No exception is made in case of consumer disputes in which the allegations made in the complaint regarding deficiency of service causing damage to or loss of the goods are contested. Indeed finality is attached to th orders of the redressal agencies and provision is made for execution and implementation of the orders passed by them treating such orders as decree of the Court. It is relevant to state here that on perusal of the provisions of the Act it is clear that the scheme of the statute is to provide hierarchy of redressal forums for attending to the grievances of consumers regarding deficiency in service promptly and give finality to the orders passed by the agencies. Therefore, it is difficult to accept the contention that the dispute redressal agencies provided in the Consumer Protection Act are not forums which have jurisdiction to entertain the complaints in which claims for loss or damage to goods entrusted to a carrier for transportation is seriously disputed. The contention raised by Shri Desai in this regard is accordingly rejected.26. Coming to the question of liability of common Carrier for loss of or damage to goods, the position of law has to be taken as fairly well settled that the liability of a carrier in India, as in England, is more extensive and the lability is that of an insurer. The absolute liability of the carrier is subject to two exceptions; an act of God and a special contract which the carrier may choose to enter with the customer.This decision is of little assistance to the appellant since the contentions raised by them before us herein were not considered by this Court therein.43. From the conspectus of views taken in the decisions of different High Court noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallized into accepted position of law. No good reason has been borough to our notice to persuade us to make a departure from the accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Shri Ashok Desai learned senior counsel, that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted.44. The question that remains to be considered is whether the principles of law discussed in the preceding paragraph is applicable in a proceeding before the consumer disputes redressal agency, particularly the National Commission. In this regard the contention of Shri Desai is that the use of the term `suit in section 9 of the Carriers Act shows that the provision is applicable only to cases filed in civil Court and does not extend to proceedings before the National Commission which is a forum which is to decide complaints by consumers following a summary procedure. Elucidating the point Shri Desai submitted that in a proceeding before the National Commission the general principle that the burden to prove negligence lies on the party alleging negligence should be applicable though the position may be different in a suit filed in a civil Court. The term "suit" has not been defined in the Carries Act nor is it provided in the said Act that the term "suit" will have the same meaning as in the Civil Procedure Code. Therefore, the ordinary dictionary meaning of the term will have to be taken for ascertaining its meaning. In P. Pamanatha Aiyars Law Lexicon 1997 Edition some of the references of the term areProsecution of pursuit of some claim, demand or request, the act of suing the process by which one endeavors to gain an end or object; attempt to attain a certain result; the act of suing; the process by which one gains an end or object, and action or process for the recovery of a right or claim; the prosecution of some demand in a Court of Justice; any proceeding in a Court of Justice in which plaintiff pursues his remedy to recover a right or claim; the mode and manner adopted by law to redress civil injuries; a proceeding in a Court of Justice for the enforcement of a right.The word "suit" in Ss. 51 to 55 Act IX of 1879, Court of Wards Act, does not mean only what is usually called a "regular suit." It embraces all contentious proceedings of an ordinary civil kind, whether they arise in a suit or miscellaneous proceedings." Suit Action. "Suit" is a term of wider signification than action it may include proceedings on a petition.Shri Desai also raised a contention on the amount awarded by the National Commission under the impugned order. He urged that the respondent by its conduct led the appellant to believe that the goods entrusted for transportation are insured and having been led by such representation the appellant had not insured the goods. This, according to Shri Desai is a circumstance which should be taken as a mitigating factor for quantification of the damage. In the impugned order the National Commission taking not of the stipulations in the delivery receipt which was signed by both the parties, confined the amount of damages to the value of the consignment destroyednot delivered. This contention in our view needs noconsideration for the reason that there is no material placed before us to show that at the time of booking of the consignment any representation as stated by Shri Desai was given by the respondent to the appellant. Shri Shanti Bhushan pointed out that the question regarding insuring the consignment was raised after the incident ofor loss of the consignment took place when the respondent asked the appellant to issue a certificate ofof the consignments. Then the respondent ascertained though it had insured all its consignments in bulk the amount stated in the policy had been exceeded by the date the consignments in question were booked, and therefore the insurance policy was not of any avail so far asof the consignments in question is concerned. It follows that this contention raised by Shri Desai is also to be rejected.
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### 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:
terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil Court established under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract." 42. This decision is of little assistance to the appellant since the contentions raised by them before us herein were not considered by this Court therein.43. From the conspectus of views taken in the decisions of different High Court noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallized into accepted position of law. No good reason has been borough to our notice to persuade us to make a departure from the accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Shri Ashok Desai learned senior counsel, that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted.44. The question that remains to be considered is whether the principles of law discussed in the preceding paragraph is applicable in a proceeding before the consumer disputes redressal agency, particularly the National Commission. In this regard the contention of Shri Desai is that the use of the term `suit in section 9 of the Carriers Act shows that the provision is applicable only to cases filed in civil Court and does not extend to proceedings before the National Commission which is a forum which is to decide complaints by consumers following a summary procedure. Elucidating the point Shri Desai submitted that in a proceeding before the National Commission the general principle that the burden to prove negligence lies on the party alleging negligence should be applicable though the position may be different in a suit filed in a civil Court. The term "suit" has not been defined in the Carries Act nor is it provided in the said Act that the term "suit" will have the same meaning as in the Civil Procedure Code. Therefore, the ordinary dictionary meaning of the term will have to be taken for ascertaining its meaning. In P. Pamanatha Aiyars Law Lexicon 1997 Edition some of the references of the term are : "Suit - Prosecution of pursuit of some claim, demand or request, the act of suing the process by which one endeavors to gain an end or object; attempt to attain a certain result; the act of suing; the process by which one gains an end or object, and action or process for the recovery of a right or claim; the prosecution of some demand in a Court of Justice; any proceeding in a Court of Justice in which plaintiff pursues his remedy to recover a right or claim; the mode and manner adopted by law to redress civil injuries; a proceeding in a Court of Justice for the enforcement of a right.The word "suit" in Ss. 51 to 55 Act IX of 1879, Court of Wards Act, does not mean only what is usually called a "regular suit." It embraces all contentious proceedings of an ordinary civil kind, whether they arise in a suit or miscellaneous proceedings." Suit Action. "Suit" is a term of wider signification than action it may include proceedings on a petition." 45. Shri Desai also raised a contention on the amount awarded by the National Commission under the impugned order. He urged that the respondent by its conduct led the appellant to believe that the goods entrusted for transportation are insured and having been led by such representation the appellant had not insured the goods. This, according to Shri Desai is a circumstance which should be taken as a mitigating factor for quantification of the damage. In the impugned order the National Commission taking not of the stipulations in the delivery receipt which was signed by both the parties, confined the amount of damages to the value of the consignment destroyednot delivered. This contention in our view needs no in-depth consideration for the reason that there is no material placed before us to show that at the time of booking of the consignment any representation as stated by Shri Desai was given by the respondent to the appellant. Shri Shanti Bhushan pointed out that the question regarding insuring the consignment was raised after the incident of non-deliver or loss of the consignment took place when the respondent asked the appellant to issue a certificate of non-delivery of the consignments. Then the respondent ascertained though it had insured all its consignments in bulk the amount stated in the policy had been exceeded by the date the consignments in question were booked, and therefore the insurance policy was not of any avail so far as non-deliveryloss of the consignments in question is concerned. It follows that this contention raised by Shri Desai is also to be rejected.
### Response:
0
### Explanation:
carrier for transportation is seriously disputed. The contention raised by Shri Desai in this regard is accordingly rejected.26. Coming to the question of liability of common Carrier for loss of or damage to goods, the position of law has to be taken as fairly well settled that the liability of a carrier in India, as in England, is more extensive and the lability is that of an insurer. The absolute liability of the carrier is subject to two exceptions; an act of God and a special contract which the carrier may choose to enter with the customer.This decision is of little assistance to the appellant since the contentions raised by them before us herein were not considered by this Court therein.43. From the conspectus of views taken in the decisions of different High Court noted above it is clear that the liability of a common carrier under the Carriers Act is that of an insurer. This position is made further clear by the provision in section 9 in which it is specifically laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the Carriers Act. This is also the position notwithstanding a special contract between the parties. These principles have held the field over a considerable length of time and have been crystallized into accepted position of law. No good reason has been borough to our notice to persuade us to make a departure from the accepted position of law. No good reason has been brought to our notice to persuade us to make a departure from the accepted position. Therefore, we reiterate the position of law noticed above. The consequential position that follows is that the contention of Shri Ashok Desai learned senior counsel, that the respondents herein having failed to establish negligence on the part of the appellant, their claim for damages should be rejected, cannot be accepted.44. The question that remains to be considered is whether the principles of law discussed in the preceding paragraph is applicable in a proceeding before the consumer disputes redressal agency, particularly the National Commission. In this regard the contention of Shri Desai is that the use of the term `suit in section 9 of the Carriers Act shows that the provision is applicable only to cases filed in civil Court and does not extend to proceedings before the National Commission which is a forum which is to decide complaints by consumers following a summary procedure. Elucidating the point Shri Desai submitted that in a proceeding before the National Commission the general principle that the burden to prove negligence lies on the party alleging negligence should be applicable though the position may be different in a suit filed in a civil Court. The term "suit" has not been defined in the Carries Act nor is it provided in the said Act that the term "suit" will have the same meaning as in the Civil Procedure Code. Therefore, the ordinary dictionary meaning of the term will have to be taken for ascertaining its meaning. In P. Pamanatha Aiyars Law Lexicon 1997 Edition some of the references of the term areProsecution of pursuit of some claim, demand or request, the act of suing the process by which one endeavors to gain an end or object; attempt to attain a certain result; the act of suing; the process by which one gains an end or object, and action or process for the recovery of a right or claim; the prosecution of some demand in a Court of Justice; any proceeding in a Court of Justice in which plaintiff pursues his remedy to recover a right or claim; the mode and manner adopted by law to redress civil injuries; a proceeding in a Court of Justice for the enforcement of a right.The word "suit" in Ss. 51 to 55 Act IX of 1879, Court of Wards Act, does not mean only what is usually called a "regular suit." It embraces all contentious proceedings of an ordinary civil kind, whether they arise in a suit or miscellaneous proceedings." Suit Action. "Suit" is a term of wider signification than action it may include proceedings on a petition.Shri Desai also raised a contention on the amount awarded by the National Commission under the impugned order. He urged that the respondent by its conduct led the appellant to believe that the goods entrusted for transportation are insured and having been led by such representation the appellant had not insured the goods. This, according to Shri Desai is a circumstance which should be taken as a mitigating factor for quantification of the damage. In the impugned order the National Commission taking not of the stipulations in the delivery receipt which was signed by both the parties, confined the amount of damages to the value of the consignment destroyednot delivered. This contention in our view needs noconsideration for the reason that there is no material placed before us to show that at the time of booking of the consignment any representation as stated by Shri Desai was given by the respondent to the appellant. Shri Shanti Bhushan pointed out that the question regarding insuring the consignment was raised after the incident ofor loss of the consignment took place when the respondent asked the appellant to issue a certificate ofof the consignments. Then the respondent ascertained though it had insured all its consignments in bulk the amount stated in the policy had been exceeded by the date the consignments in question were booked, and therefore the insurance policy was not of any avail so far asof the consignments in question is concerned. It follows that this contention raised by Shri Desai is also to be rejected.
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PATTU RAJAN Vs. THE STATE OF TAMIL NADU
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as Santhakumar’s, and the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act.In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt.41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain of circumstances.Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. (See Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 ; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 ).42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date.43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. (See Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 ; State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC 247 ; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001) 6 SCC 145 ; Chaman & Anr. v. State of Uttarakhand, (2016) 12 SCC 76 ).
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0[ds]15. We do not find any force in the arguments of the learned Senior Advocate for the appellants that the incident of murder in the case in hand is merely a continuation of an earlier offence, i.e. Crime No. 1030 of 2001 relating to the abduction of PW1 and the deceased Santhakumar, which occurred on 01.10.2001.Undoubtedly, factors such as proximity of time or place, unity of purpose and design and continuity of action, in respect of a series of acts, have to be considered in order to determine whether such acts form part of the same transaction or not (See State of A.P. v. Cheemalapati Ganeswara Rao, (1964) 3 SCR 297 ). A quick overview of the sequence of unfolding of the incident of murder in question and the prior incident of abduction would show that the above factors cannot be said to be satisfied in this case. Even when the two FIRs Ext. P1 and P3 are read together, it becomes clear that the first incident of abduction began and ended on 01.10.2001. The crime of abduction commenced when the victims (PW1 and the deceased) were forced into captivity on the said date, and was completed on the same day immediately after the victims were released. In respect of the said incident, the first information came to be lodged on 12.10.2001 by PW1. During the investigation of the said case, on 24.10.2001, the accused brought the deceased, PW1 and her family members to Tirunelveli. The present crime came to be committed on 26.10.2001, whereby PW1 and her husband, Santhakumar were taken away in a car, and on the direction of Accused No.1, Accused Nos. 2 to 4, 6 and 7 forcibly took away Santhakumar by separating him from his wife, committed his murder and threw away his body at the Tiger -Chola forest area within the jurisdiction of Kodaikanal Police Station.Evidently, the time and place of occurrence of the two incidents are different. Even the number of accused involved in the incidents is different. No continuity of action can be gathered from the sequence of events either. It may be noted that the motive for commission of both the offences may be the same, inasmuch as they were committed to enable Accused No. 1 to marry PW1, but merely because of their common motive, the second offence cannot be said to be in continuation of the first incident, in light of there being distinct intentions behind the two offences. The first offence was committed with the intention to abduct the deceased and PW1, the purpose for which was merely to threaten and pressurize them. In contrast, the intention behind the second offence was to murder the deceased with a view to permanently get rid of him. Therefore, it is evident that unity of purpose and design between the two offences is also absent. Thus, it is amply clear that the incident of murder is entirely separate and distinct from the earlier incident of abduction.16. Undisputedly, the first information pertaining to the incident of abduction, after passing through various stages and various police officers, ultimately came to be registered as an FIR on 09.11.2001 in the jurisdictional Police Station. Nevertheless, the fact remains that the offence of abduction was completed on 01.10.2001 itself and the first information came to be lodged on 12.10.2001.17. There cannot be any dispute that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but also violates Article 21 of the Constitution.However, the aforementioned principles of law may not be applicable to the facts of the incident on hand, as the crimes underlying the two FIRs are distinct and different. The offence punishable under Section 302, in the present case, was committed during the course of investigation of the case in the first FIR, i.e. relating to the crime of abduction. We are of the considered opinion that the allegations and offences under this present FIR relating to the murder of the deceased are substantially distinct from the information lodged in Crime No. 1030 of 2001 relating to abduction. We are unable to accept the argument of Shri Sushil Kumar that at the most, further investigation could have been made by the police in the earlier crime registered relating to abduction since the murder has allegedly taken place during the subsistence of investigation of the crime of abduction. As mentioned supra, the facts and circumstances of the matter clearly indicate that the offence of abduction committed by the appellants and the offence of murder were two different and distinct offences, and therefore, there is no question of further investigation to be made in the crime of abduction by the investigating agency relating to the offence of murder which was committed during the subsistence of the investigation relating to abduction. Further investigation, as envisaged under Sub -section 8 of Section 173 of the Cr.P.C, connotes investigation of the case in continuation of an earlier investigation with respect to which the chargesheet has already been filed. In case a fresh offence is committed during the course of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh. It is pertinent to note that the facts on hand are similar to the facts in the case of Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC 8 , wherein this Court held that the case arising out of a second FIR, if relating to a separate transaction, cannot be investigated along with a previous FIR under the clause ‘furtheras contemplated under Sub-section 8 to Section 173 of thelight of the aforementioned settled legal proposition, we have no hesitation in holding that the separate first information lodged in this case is just, legal and proper.21. Furthermore, it is no doubt true that the first information relating to the crime of abduction dated 12.10.2001 was marked in the case on hand relating to murder. However, we cannot accept the contention that the same has been used as a substantive piece of evidence in this matter. This is because the said document was practically used only as supportive material to show the motive for the accused to commit the crime.22. Coming to the merits of the matter, it is pertinent to note that the prosecution mainly relied upon three circumstances to prove the guilt of the accused, i.e. motive, the last seen circumstance and the recovery of the dead body at the instance of the accused. An additional link in the chain of circumstances is the non -explanation by the accused about the last seen circumstance in their statement recorded under Section 313 of the Cr.P.C. Clearly, there is no direct evidence in this matter and the whole case rests on circumstantial evidence.Before we undertake a consideration of the evidence supporting such circumstances, we would like to note that the law relating to circumstantial evidence is well settled. The Judge while deciding matters resting on circumstantial evidence should always tread cautiously so as to not allow conjectures or suspicion, however strong, to take the place of proof. If the alleged circumstances are conclusively proved before the Court by leading cogent and reliable evidence, the Court need not look any further before affirming the guilt of the accused. Moreover, human agency may be faulty in expressing the picturisation of the actual incident, but circumstances cannot fail or be ignored. As aptly put in this oft - quoted phrase:may lie, but circumstances domentioned supra, the circumstances relied upon by the prosecution should be of a conclusive nature and they should be such as to exclude every other hypothesis except the one to be proved by the prosecution regarding the guilt of the accused. There must be a chain of evidence proving the circumstances so complete so as to not leave any reasonable ground for a conclusion of innocence of the accused.In order to satisfy our conscience, we have independently considered the evidence on record in its entirety in view of the aforementioned principles. However, as we do not wish to burden this judgment by reiterating the depositions of all the witnesses on record in detail, we deem it fit to discuss only the important aspects highlighted by some of the prosecution witnesses in theiris evident from the above discussion that the evidence of PWs 1 and 2 with regard to the motive for commission of the offence, the last seen circumstance and recovery as well as the identification of the dead body is consistent with the case of the prosecution. We do not find any artificiality in their evidence. On the other hand, their evidence remains natural, consistent, cogent and probable, and thus we do not find any reason to disagree with the findings arrived at in that regard by the Trial Court as well as by the Highcannot be any dispute that a confession made by the accused in police custody is an inadmissible confession. The confession herein cannot even be called an extra -judicial confession because of the presence of the police. Be that as it may, if a confession is made by the accused before the police and a portion of the confession leads to the recovery of any incriminating material, such portion alone is admissible under Section 27 of the Indian Evidence Act. Since only such portion of the confession relating to the recovery of certain material objects was admitted in evidence and relied upon, such reliance was in accordance withcannot lose sight of the fact that DNA evidence is also in the nature of opinion evidence as envisaged in Section 45 of the Indian Evidence Act. Undoubtedly, an expert giving evidence before the Court plays a crucial role, especially since the entire purpose and object of opinion evidence is to aid the Court in forming its opinion on questions concerning foreign law, science, art, etc., on which the Court might not have the technical expertise to form an opinion on its own. In criminal cases, such questions may pertain to aspects such as ballistics, fingerprint matching, handwriting comparison, and even DNA testing or superimposition techniques, as seen in the instantit is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts.Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.34. This leads us to the question of the propriety of relying upon the superimposition test conducted in the instant case for identifying the deceased. As noted supra, the learned counsel for the appellants has argued that evidence pertaining to the use of the superimposition technique is not a tangible piece of evidence. We find ourselves unable to agree with this view. There cannot be any dispute that evidence on superimposition is also based onopinion. We would like to note that the use of the superimposition technique in Indian investigations for identification purposes is not a new phenomenon. Notably, it has been employed in the investigations pertaining to the Nithari murders, the Russian murder incident in Goa in 2008, and even before that in the Morni Hill murder case and the Paharganj bomb blast case as far back as in 1996, and the Udhampur murder case in 2005 (See Modi, A Textbook of Medical Jurisprudence and Toxicology, 26 th edn., 2018, pp. 267-271). This Court itself has placed reliance on identification of the deceased through superimposition on several occasions (see Shankar & Ors. v. State of Tamil Nadu, (1994) 4 SCC 478 ; Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288 ; Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509 ; Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292 ), clearly indicating that it is an acceptable piece of opinion evidence.35. It is relevant to note that all of the decisions of this Court cited in the above paragraph were based on circumstantial evidence, involving aspects such as the last seen circumstance, motive, recovery of personal belongings of the deceased, and so on, and therefore in none of the cases was the superimposition technique the sole incriminating factor relied upon to reach a conclusion of guilt of the accused. Indeed, in Mahesh Dhanaji Shinde (supra), the Court also had the advantage of referring to a DNA test, and in John David (supra), of referring to a DNA test as well as dental examination of the deceased, to determine the identity of the victim. This is in line with the settled practice of the Courts, which generally do not rely upon opinion evidence as the sole incriminating circumstance, given its fallibility. This is particularly true for the superimposition technique, which cannot be regarded as infallible.36. In view of the above discussion, we hold that the High Court was justified in observing that a superimposition test cannot be taken as a conclusive one for the identification of a dead body, because by itself it may not conclusively establish identification. However, the High Court rightly accepted the expert testimony on this aspect since in the instant case, the superimposition test was merely one piece of evidence relied upon by the prosecution to corroborate the evidence of PWs 1 and 2 in order to strengthen its case.37. Moreover, it is evident from the testimony of PW34, Dr. Jayaprakash, who conducted the superimposition test, that the test was conducted by using three different methods, i.e. video superimposition, visual observation, and dental trait superimposition, and in spite of challenges to the reliability of such evidence, the Courts, after carefully assessing the methodology adopted, accepted the finding reached by PW34 regarding the identification of the body, and we see no error in such conclusion reached by the Courts.38. Therefore, we are of the opinion that the scientific evidence of PW34 was rightly believed by the Trial Court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body. Though a DNA test would have helped the Courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the contention that the non -conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests.39. It is noteworthy to emphasise that based on the confession of Accused No.6, recoveries of a wallet containing a photograph of PW1, gold chain etc. were effected from his house, which, as mentioned supra, also stand positively identified by PW1 and her family as belonging to the deceased.40. From the evidence of the witnesses discussed supra, it is amply clear that the dead body recovered from Tiger -Chola was identified by PW1 and her family members asand the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act.In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt.41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain of circumstances.Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date.43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful.
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as Santhakumar’s, and the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act.In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt.41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain of circumstances.Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. (See Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 ; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 ).42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date.43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. (See Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 ; State of H.P. v. Lekh Raj & Anr., (2000) 1 SCC 247 ; Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., (2001) 6 SCC 145 ; Chaman & Anr. v. State of Uttarakhand, (2016) 12 SCC 76 ).
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It is noteworthy to emphasise that based on the confession of Accused No.6, recoveries of a wallet containing a photograph of PW1, gold chain etc. were effected from his house, which, as mentioned supra, also stand positively identified by PW1 and her family as belonging to the deceased.40. From the evidence of the witnesses discussed supra, it is amply clear that the dead body recovered from Tiger -Chola was identified by PW1 and her family members asand the same body was exhumed from the burial grounds. It is evident from the depositions that the recovery of the dead body was made from the Tiger-Chola forest area, which is the same place to which Accused No. 2 led the investigation team based on his confession about disposal of the dead body. It is relevant to note at this juncture that merely because the actual recovery of the body happened before the accused lead the police to the scene, it does not, in the facts and circumstances of this case, negate the validity of the recovery based on a confession, in terms of Section 27 of the Evidence Act.In our considered view, the recovery of the body of the deceased at the instance of Accused No. 2 and the identification of the body as that of Santhakumar by PW1, her family as well as by the accused, on the basis of photographs, the clothes and belongings of the deceased, and his scar, stand proved beyond all reasonable doubt.41. As mentioned supra, the evidence of PWs 1 and 2 proves the circumstance relating to the last seen evidence beyond reasonable doubt, apart from other circumstances. Both of them in their evidence (especially PW1), as mentioned supra, have consistently and cogently deposed that the deceased was last seen along with the accused, who took the deceased away upon the orders of Accused No. 1. No explanation, much less any plausible explanation has come from the accused in their statements under Section 313 of the Cr.P.C rebutting the strong evidence against them. Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non -explanation by the accused provides an additional link in the chain of circumstances.Furthermore, although it was argued by Shri Sushil Kumar that the evidence relating to the last seen circumstance as deposed by PW1 was not put to the accused while recording their statement under Section 313, such an argument cannot be accepted, since Question No. 22 and Question No. 30 specifically relate to the evidence of the last seen circumstance, and were put to Accused No.1. Same is the case with the other appellants. A perusal of the statements of the accused recorded under Section 313 also reveals that the relevant questions pertaining to taking Santhakumar along with PW1 in the car on 26.10.2001, detection of the decomposed dead body and the post-mortem thereof were all put to the accused so as to fully enable them to explain all the incriminating circumstances appearing against them in the evidence adduced by the prosecution. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances.42. It is also relevant to note that the bill book and cash book of a petrol pump at Palani (Ext. P32), where the Tata Sumo bearing Registration No. TN 09 Q 1310 (M.O.3) was refuelled, were also seized. This is very crucial evidence to show that the Tata Sumo in which the accused were travelling along with the deceased had in fact gone towards Kodaikanal, as is evident from the fact that fuel was filled from a petrol pump enroute to Kodaikanal at Palani on the relevant date.43. In our considered opinion, the overwhelming, consistent, cogent and reliable testimonies of PWs 1 and 2, along with the aforementioned corroborative evidence, conclusively prove the prosecution case. We reiterate that PWs 1 and 2 were steadfast in their testimony about the motive, the last seen circumstance, recovery of the dead body based on the confession of Accused No.2, and about the identification of the dead body. We do not find any embellishment or exaggeration in the evidence of these witnesses. Moreover, the evidence of the other prosecution witnesses (especially PWs 7, 26, 27, 29, 32 and 33) is homogeneous, consistent and reliable, and corroborates the testimony of PWs 1 and 2, which leads us to conclude that the chain of circumstances is complete and points solely at the guilt of the accused. In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger -Chola. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful.
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T.N. Godavarman Thirumulpad and Ors Vs. Union of India (UOI) and Ors
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the entire area of village Nani Ber of Abdasa Taluka admeasuring Hectares 364.22 Are (Acre 900-00 gutha) in relation to Firing survey No. 79, 80, 82, 83, 84, 85, 86, 94 (part) 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118 & 119 will not be kept as reserved forest and hence, the question relating to the facts of common people does not arise at all, and hence the Schedule A will be treated as NIL. (underline is ours) 19. On a consideration of the order of the Forest Settlement Officer extracted above, the Forest and Environment Department of the State of Gujarat has on 23.08.2016 ordered as under: In view of above, consequent to due process of settlement and proceedings therein, as provided in IFA 1927 and forest settlement report, due to reasons recorded therein, entire area of 364.22 hectares, declared Under Section 4, not being recommended to be declared as forest Under Section 20, has been deleted, from Section 4 thereby leaving no area to be declared Under Section 20. Hence no procedure for declaring the area Under Section 20 was required. In view of the above situation, state hereby declares that consequent to completion of legal process of forest settlement and right examination, appellate procedure, and the process provided in IFA 1927, from Section (4) to (20) and acceptance of Forest Settlement report, entire area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district - initially declared Under Section 4 not being recommended to be fit for declaring Under Section 20. owing to the reasons, recorded in the forest settlement report - has been deleted, from Section 4 and there being no area left for declaring Under Section 20, the notification for Section 20 is not required and entire procedure for declaring the forest may be deemed to have been completed and area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district, declared Under Section 4, is reverted back to its original status of revenue land. 20. In view of the above, the release of area measuring 364.22 hectares, which is the subject matter of consideration, is clear. 21. It is not necessary for us to dwell into the instant aspect of the matter any further. All that needs to be recorded is, that Under Section 3 of the Indian Forest Act, 1927, the kinds of land which can be declared as reserved forest has been expressly delineated therein. Section 3 afore-mentioned is reproduced below: 3. Power to reserve forests - The State - Government may constitute any forest-land or waste-land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled, a reserved forest in the manner hereinafter provided. (underline is ours) 22. It is out of the above lands, that the State Government can notify a reserved forest area, Under Section 4 of the Indian Forest Act, 1927. The same is also reproduced below: 4. Notification by State Government-- (1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette- (a) declaring that it has been decided to constitute such land a reserved forest; (b) specifying, as nearly as possible, the situation and limits of such land; and (c) appointing an officer (hereinafter called the Forest Settlement Officer) to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest produce, and to deal with the same as provided in this Chapter. Explanation - For the purpose of Clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries. (2) The officer appointed under Clause (c) of Sub-section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement Officer. (3) Nothing in this Section shall prevent the State Government from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest-office except as aforesaid, to perform the duties of a Forest Settlement Officer under this Act. It is apparent from a collective reading of Sections 3 and 4 of the Indian Forest Act, extracted hereinabove, that in case of a deletion of an area, which was proposed to be declared as a reserved forest, the area so deleted will revert to the original nomenclature of the said area, i.e., the nomenclature which the land had, prior to the issuance of the notification Under Section 4 of the India Forest Act. 23. Out of the kinds of land expressed in Section 3, it is apparent, that if the land notified Under Section 4 was not forest land but waste land, or some other kind of land over which Government has proprietary rights, on the deletion of the area notified Under Section 4, such land would stand restored to its original nomenclature as forest land and/or alternatively such type of land, such as waste land, over which the Government has proprietary rights. In the afore-mentioned latter category of land, no clearance contemplated Under Section 2 of the Forest (Conservation) Act, 1980, can be insisted on. It is only with reference to reserved forest land, or land which is notified for being declared as reserved forest, or forest land, that a clearance is contemplated Under Section 2 of the Forest (Conservation) Act, 1980.
|
1[ds]6. We would not have, as a matter of routine, accepted the prayer made by the Learned Counsel for the applicant, as has been noticed in the foregoing paragraphs. However, on examining the complication of the legal issue involved, we were satisfied, that a determinative order needed to be passed for an effective disposal of the application filed by ABG Cement Limited, Under Section 3 of the Forest (Conservation) Act, 1980. It is therefore, that we would venture to adjudicate upon the limited issue, which has been projected before us, during the course of hearing.7. It is not a matter of dispute, that ABG Cement Limited moved an application under the Forest (Conservation) Act, 1980 for conducting limestone mining operations, over land given to it on lease by the State of Gujarat. In this behalf, it would be relevant to mention, that by notification dated 21.8.1984, (issued Under Section 4 of the Indian Forest Act, 1927), the Government of Gujarat expressed its intention to declare certain areas of land as reserved forest, in district Kutch, in the State of Gujarat. The land depicted in the Section 4 notification, inter alia, included land over which ABG Cement Limited, had been granted a mining lease. By an award dated 9.11.1995, the Forest Settlement Officer, inter alia, deleted an area of 364.22 hectares, out of the area notified Under Section 4, referred to above.15. We are of the view, that the aforesaid order was with reference to the transitory period, namely, from the date of the issuance of the notification Under Section 4 of the Forest Act, till the culmination of the process of declaration Under Section 20 of the Forest Act. We are of the view, that the afore-stated direction was inevitable, in view of the fact, that in case an individual was desirous of using forest land for non-forest purposes, permission Under Section 2 of the Forest (Conservation) Act, 1980 was imperative, and it is therefore, that even during the transitory period, it would be open to the Ministry of Environment and Forests, to approve a request for use of forest area for non-forest purposes, Under Section 2 afore-mentioned.19. On a consideration of the order of the Forest Settlement Officer extracted above, the Forest and Environment Department of the State of Gujarat has on 23.08.2016 ordered as under:In view of above, consequent to due process of settlement and proceedings therein, as provided in IFA 1927 and forest settlement report, due to reasons recorded therein, entire area of 364.22 hectares, declared Under Section 4, not being recommended to be declared as forest Under Section 20, has been deleted, from Section 4 thereby leaving no area to be declared Under Section 20. Hence no procedure for declaring the area Under Section 20 was required.In view of the above situation, state hereby declares that consequent to completion of legal process of forest settlement and right examination, appellate procedure, and the process provided in IFA 1927, from Section (4) to (20) and acceptance of Forest Settlement report, entire area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district - initially declared Under Section 4 not being recommended to be fit for declaring Under Section 20. owing to the reasons, recorded in the forest settlement report - has been deleted, from Section 4 and there being no area left for declaring Under Section 20, the notification for Section 20 is not required and entire procedure for declaring the forest may be deemed to have been completed and area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district, declared Under Section 4, is reverted back to its original status of revenue land.20. In view of the above, the release of area measuring 364.22 hectares, which is the subject matter of consideration, is clear.21. It is not necessary for us to dwell into the instant aspect of the matter any further. All that needs to be recorded is, that Under Section 3 of the Indian Forest Act, 1927, the kinds of land which can be declared as reserved forest has been expressly delineated therein.22. It is out of the above lands, that the State Government can notify a reserved forest area, Under Section 4 of the Indian Forest Act, 1927.It is apparent from a collective reading of Sections 3 and 4 of the Indian Forest Act, extracted hereinabove, that in case of a deletion of an area, which was proposed to be declared as a reserved forest, the area so deleted will revert to the original nomenclature of the said area, i.e., the nomenclature which the land had, prior to the issuance of the notification Under Section 4 of the India Forest Act.23. Out of the kinds of land expressed in Section 3, it is apparent, that if the land notified Under Section 4 was not forest land but waste land, or some other kind of land over which Government has proprietary rights, on the deletion of the area notified Under Section 4, such land would stand restored to its original nomenclature as forest land and/or alternatively such type of land, such as waste land, over which the Government has proprietary rights. In the afore-mentioned latter category of land, no clearance contemplated Under Section 2 of the Forest (Conservation) Act, 1980, can be insisted on. It is only with reference to reserved forest land, or land which is notified for being declared as reserved forest, or forest land, that a clearance is contemplated Under Section 2 of the Forest (Conservation) Act, 1980.
| 1 | 5,115 | 1,161 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
the entire area of village Nani Ber of Abdasa Taluka admeasuring Hectares 364.22 Are (Acre 900-00 gutha) in relation to Firing survey No. 79, 80, 82, 83, 84, 85, 86, 94 (part) 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118 & 119 will not be kept as reserved forest and hence, the question relating to the facts of common people does not arise at all, and hence the Schedule A will be treated as NIL. (underline is ours) 19. On a consideration of the order of the Forest Settlement Officer extracted above, the Forest and Environment Department of the State of Gujarat has on 23.08.2016 ordered as under: In view of above, consequent to due process of settlement and proceedings therein, as provided in IFA 1927 and forest settlement report, due to reasons recorded therein, entire area of 364.22 hectares, declared Under Section 4, not being recommended to be declared as forest Under Section 20, has been deleted, from Section 4 thereby leaving no area to be declared Under Section 20. Hence no procedure for declaring the area Under Section 20 was required. In view of the above situation, state hereby declares that consequent to completion of legal process of forest settlement and right examination, appellate procedure, and the process provided in IFA 1927, from Section (4) to (20) and acceptance of Forest Settlement report, entire area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district - initially declared Under Section 4 not being recommended to be fit for declaring Under Section 20. owing to the reasons, recorded in the forest settlement report - has been deleted, from Section 4 and there being no area left for declaring Under Section 20, the notification for Section 20 is not required and entire procedure for declaring the forest may be deemed to have been completed and area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district, declared Under Section 4, is reverted back to its original status of revenue land. 20. In view of the above, the release of area measuring 364.22 hectares, which is the subject matter of consideration, is clear. 21. It is not necessary for us to dwell into the instant aspect of the matter any further. All that needs to be recorded is, that Under Section 3 of the Indian Forest Act, 1927, the kinds of land which can be declared as reserved forest has been expressly delineated therein. Section 3 afore-mentioned is reproduced below: 3. Power to reserve forests - The State - Government may constitute any forest-land or waste-land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled, a reserved forest in the manner hereinafter provided. (underline is ours) 22. It is out of the above lands, that the State Government can notify a reserved forest area, Under Section 4 of the Indian Forest Act, 1927. The same is also reproduced below: 4. Notification by State Government-- (1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette- (a) declaring that it has been decided to constitute such land a reserved forest; (b) specifying, as nearly as possible, the situation and limits of such land; and (c) appointing an officer (hereinafter called the Forest Settlement Officer) to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest produce, and to deal with the same as provided in this Chapter. Explanation - For the purpose of Clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries. (2) The officer appointed under Clause (c) of Sub-section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement Officer. (3) Nothing in this Section shall prevent the State Government from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest-office except as aforesaid, to perform the duties of a Forest Settlement Officer under this Act. It is apparent from a collective reading of Sections 3 and 4 of the Indian Forest Act, extracted hereinabove, that in case of a deletion of an area, which was proposed to be declared as a reserved forest, the area so deleted will revert to the original nomenclature of the said area, i.e., the nomenclature which the land had, prior to the issuance of the notification Under Section 4 of the India Forest Act. 23. Out of the kinds of land expressed in Section 3, it is apparent, that if the land notified Under Section 4 was not forest land but waste land, or some other kind of land over which Government has proprietary rights, on the deletion of the area notified Under Section 4, such land would stand restored to its original nomenclature as forest land and/or alternatively such type of land, such as waste land, over which the Government has proprietary rights. In the afore-mentioned latter category of land, no clearance contemplated Under Section 2 of the Forest (Conservation) Act, 1980, can be insisted on. It is only with reference to reserved forest land, or land which is notified for being declared as reserved forest, or forest land, that a clearance is contemplated Under Section 2 of the Forest (Conservation) Act, 1980.
### Response:
1
### Explanation:
6. We would not have, as a matter of routine, accepted the prayer made by the Learned Counsel for the applicant, as has been noticed in the foregoing paragraphs. However, on examining the complication of the legal issue involved, we were satisfied, that a determinative order needed to be passed for an effective disposal of the application filed by ABG Cement Limited, Under Section 3 of the Forest (Conservation) Act, 1980. It is therefore, that we would venture to adjudicate upon the limited issue, which has been projected before us, during the course of hearing.7. It is not a matter of dispute, that ABG Cement Limited moved an application under the Forest (Conservation) Act, 1980 for conducting limestone mining operations, over land given to it on lease by the State of Gujarat. In this behalf, it would be relevant to mention, that by notification dated 21.8.1984, (issued Under Section 4 of the Indian Forest Act, 1927), the Government of Gujarat expressed its intention to declare certain areas of land as reserved forest, in district Kutch, in the State of Gujarat. The land depicted in the Section 4 notification, inter alia, included land over which ABG Cement Limited, had been granted a mining lease. By an award dated 9.11.1995, the Forest Settlement Officer, inter alia, deleted an area of 364.22 hectares, out of the area notified Under Section 4, referred to above.15. We are of the view, that the aforesaid order was with reference to the transitory period, namely, from the date of the issuance of the notification Under Section 4 of the Forest Act, till the culmination of the process of declaration Under Section 20 of the Forest Act. We are of the view, that the afore-stated direction was inevitable, in view of the fact, that in case an individual was desirous of using forest land for non-forest purposes, permission Under Section 2 of the Forest (Conservation) Act, 1980 was imperative, and it is therefore, that even during the transitory period, it would be open to the Ministry of Environment and Forests, to approve a request for use of forest area for non-forest purposes, Under Section 2 afore-mentioned.19. On a consideration of the order of the Forest Settlement Officer extracted above, the Forest and Environment Department of the State of Gujarat has on 23.08.2016 ordered as under:In view of above, consequent to due process of settlement and proceedings therein, as provided in IFA 1927 and forest settlement report, due to reasons recorded therein, entire area of 364.22 hectares, declared Under Section 4, not being recommended to be declared as forest Under Section 20, has been deleted, from Section 4 thereby leaving no area to be declared Under Section 20. Hence no procedure for declaring the area Under Section 20 was required.In view of the above situation, state hereby declares that consequent to completion of legal process of forest settlement and right examination, appellate procedure, and the process provided in IFA 1927, from Section (4) to (20) and acceptance of Forest Settlement report, entire area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district - initially declared Under Section 4 not being recommended to be fit for declaring Under Section 20. owing to the reasons, recorded in the forest settlement report - has been deleted, from Section 4 and there being no area left for declaring Under Section 20, the notification for Section 20 is not required and entire procedure for declaring the forest may be deemed to have been completed and area of 364.22 hectares of survey numbers 79, 80, 82, 83, 84, 85, 86, 94 part, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 113, 114, 115, 116, 117, 118, 119 of Nanibar village of Kutch district, declared Under Section 4, is reverted back to its original status of revenue land.20. In view of the above, the release of area measuring 364.22 hectares, which is the subject matter of consideration, is clear.21. It is not necessary for us to dwell into the instant aspect of the matter any further. All that needs to be recorded is, that Under Section 3 of the Indian Forest Act, 1927, the kinds of land which can be declared as reserved forest has been expressly delineated therein.22. It is out of the above lands, that the State Government can notify a reserved forest area, Under Section 4 of the Indian Forest Act, 1927.It is apparent from a collective reading of Sections 3 and 4 of the Indian Forest Act, extracted hereinabove, that in case of a deletion of an area, which was proposed to be declared as a reserved forest, the area so deleted will revert to the original nomenclature of the said area, i.e., the nomenclature which the land had, prior to the issuance of the notification Under Section 4 of the India Forest Act.23. Out of the kinds of land expressed in Section 3, it is apparent, that if the land notified Under Section 4 was not forest land but waste land, or some other kind of land over which Government has proprietary rights, on the deletion of the area notified Under Section 4, such land would stand restored to its original nomenclature as forest land and/or alternatively such type of land, such as waste land, over which the Government has proprietary rights. In the afore-mentioned latter category of land, no clearance contemplated Under Section 2 of the Forest (Conservation) Act, 1980, can be insisted on. It is only with reference to reserved forest land, or land which is notified for being declared as reserved forest, or forest land, that a clearance is contemplated Under Section 2 of the Forest (Conservation) Act, 1980.
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Ram Singh Saini Vs. H. N. Bhargava
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for quashing the appellants appointment. The High Court of Madhya Pradesh quashed the resolution dated 18-2-1973 appointing the appellant as Professor of Zoology and indicated that the University may advertise the post afresh if they desire to fill in the vacancy. The ground on which the resolution was quashed was that the appointment was made more than a year after the recommendation of the Selection Committee was made and this was not permissible. The High Court relied upon the statute 21-AA of the Statutes of the University made under Section 31 (aa) of the Act for this conclusion. This section enables statutes to be made, among other things, for the mode of appointment of teachers of the University paid by the University. The statute in question reads as follows:"Statute No. 21-AA"(1) All vacancies in teaching posts of the University (except those to be filled by promotion as provided for under sub-section (aa) of Sec. 31) shall be duly advertised and all applications will be placed before the Committee of Selection as provided for under sub-section. (2) of S. 47-A of the University of Saugar Amendment Act 1965.(2) If no appointment is made to a post within one year from the date of the nomination by the Selection Committee then the post shall be readvertised before making an appointment as provided for under (1) above."3. Quite clearly the appointment made more than a year after the date of nomination by the Selection Committee is not in accordance with the statute 21-AA. The requirement of the statute is that the post should be readvertised before making an appointment if the appointment is not made within a year of the Selection Committees recommendation.4. On behalf of the appellant it was argued that the statute is directory and not mandatory, that in any case the statute is beyond the rule making power conferred by Sec. 31 (aa). A number of decisions were relied upon in support of the submission that where a provision of law lays down a period within which a public body should perform any function, that provision is merely directory and not mandatory. The question whether a particular provision of a statute is directory or mandatory might well arise in a case where merely a period is specified for performing a duty but the consequences of not performing the duty within that period are not mentioned. ln this case clearly the statute provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof. This proceeds on the basis that if the post is not filled within a year from the date of the nomination by the Selection Committee the post should be readvertised. So unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannot be said to be valid. Though the reason for the delay in making the appointment was the wrongful refusal of the Executive Council to act in pursuance of the recommendation of the Selection Committee and the pendency of the writ petition filed by the appellant in the High Court, that does not in any way minimise the effect of sub-rule (2) of Statute No. 21-AA. The position may well have been otherwise if there had been a stay or direction prohibiting the Exectuive Council from making the appointment. Such is not the case here. We do not therefore think it necessary to discuss the various decisions relied upon by the appellant. Nor can we agree that the statute in question is beyond the rule making power. Under Section 31 (aa) statutes can be made with regard to the mode of appointments of teachers of the University. The statute provides that the appointment should be made after the post is advertised and the applications received considered by a committee of selection. It also provides that if no appointment is made to the post within one year from the date of nomination by the selection committee the post shall be readvertised. The rule therefore certainly relates to the mode of appointment. It cannot be said to be unrelated to the mode of appointment. It apparently proceeds on the basis that after the lapse of a year there may be more men to choose from. Unless it could be said that the rule has no relation to the power conferred by the rule-making power it cannot be said to be beyond the rule-making power. Such is not position here.We are also unable to agree that the statute is in conflict with or in derogation of the provisions of the statute.5. It was then argued on behalf of the appellant that the post of the Professor of Zoology is not a public office and therefore a writ of quo warranto cannot be issued. The decisions in Dr. P. S. Venkataswamy v. University of Mysore (AIR 1964 Mys 159) and S. B. Ray v. P. N. Banerjee, (1968) 72 Cal WN 50 were relied upon to contend that the post in question is not a public office and therefore no writ of quo warranto can issue. But it should be noticed that no writ of quo warranto was issued in this case. What was issued was a writ of certiorari as the order of the High Court only quashed the resolution of the Executive Council dated 18-2-1973. In his petition the respondent had asked for (1) a writ of certiorari. (2) a writ of mandamus, and (3) a writ of quo warranto. What was issued was a writ of certiorari. The question whether a writ of quo warranto could issue in the circumstances of this case and whether the office was a public office was not raised or argued before the High Court. Indeed it was not even raised in the special leave petition filed by the appellant. We cannot therefore decide the present appeal on the basis that what was issued was a writ of quo warranto.
|
0[ds]3. Quite clearly the appointment made more than a year after the date of nomination by the Selection Committee is not in accordance with the statute 21-AA. The requirement of the statute is that the post should be readvertised before making an appointment if the appointment is not made within a year of the Selection Committeesquestion whether aparticular provision of a statute is directory ormandatory might well arise in a case where merely a period is specified for performing a duty but the consequences of not performing the duty within that period are not mentioned. ln this case clearly the statute provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof. This proceeds on the basis that if the post is not filled within a year from the date of the nomination by the Selection Committee the post should be readvertised. So unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannot be said to be valid. Though the reason for the delay in making the appointment was the wrongful refusal of the Executive Council to act in pursuance of the recommendation of the Selection Committee and the pendency of the writ petition filed by the appellant in the High Court, that does not in any way minimise the effect of sub-rule (2) of Statute No. 21-AA. The position may well have been otherwise if there had been a stay or direction prohibiting the Exectuive Council from making the appointment. Such is not the case here. We do not therefore think it necessary to discuss the various decisions relied upon by the appellant. Nor can we agree that the statute in question is beyond the rule making power. Under Section 31 (aa) statutes can be made with regard to the mode of appointments of teachers of the University. The statute provides that the appointment should be made after the post is advertised and the applications received considered by a committee of selection. It also provides that if no appointment is made to the post within one year from the date of nomination by the selection committee the post shall be readvertised. The rule therefore certainly relates to the mode of appointment. It cannot be said to be unrelated to the mode of appointment. It apparently proceeds on the basis that after the lapse of a year there may be more men to choose from. Unless it could be said that the rule has no relation to the power conferred by the rule-making power it cannot be said to be beyond the rule-making power. Such is not position here.We are also unable to agree that the statute is in conflict with or in derogation of the provisions of theit should be noticed that no writ of quo warranto was issued in this case. What was issued was a writ of certiorari as the order of the High Court only quashed the resolution of the Executive Council dated 18-2-1973. In his petition the respondent had asked for (1) a writ of certiorari. (2) a writ of mandamus, and (3) a writ of quo warranto. What was issued was a writ of certiorari. Thequestion whether awrit of quo warranto could issue in the circumstances of this case and whether the office was a public office was not raised or argued before the High Court. Indeed it was not even raised in the special leave petition filed by the appellant. We cannot therefore decide the present appeal on the basis that what was issued was a writ of quo warranto.
| 0 | 1,361 | 658 |
### 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 quashing the appellants appointment. The High Court of Madhya Pradesh quashed the resolution dated 18-2-1973 appointing the appellant as Professor of Zoology and indicated that the University may advertise the post afresh if they desire to fill in the vacancy. The ground on which the resolution was quashed was that the appointment was made more than a year after the recommendation of the Selection Committee was made and this was not permissible. The High Court relied upon the statute 21-AA of the Statutes of the University made under Section 31 (aa) of the Act for this conclusion. This section enables statutes to be made, among other things, for the mode of appointment of teachers of the University paid by the University. The statute in question reads as follows:"Statute No. 21-AA"(1) All vacancies in teaching posts of the University (except those to be filled by promotion as provided for under sub-section (aa) of Sec. 31) shall be duly advertised and all applications will be placed before the Committee of Selection as provided for under sub-section. (2) of S. 47-A of the University of Saugar Amendment Act 1965.(2) If no appointment is made to a post within one year from the date of the nomination by the Selection Committee then the post shall be readvertised before making an appointment as provided for under (1) above."3. Quite clearly the appointment made more than a year after the date of nomination by the Selection Committee is not in accordance with the statute 21-AA. The requirement of the statute is that the post should be readvertised before making an appointment if the appointment is not made within a year of the Selection Committees recommendation.4. On behalf of the appellant it was argued that the statute is directory and not mandatory, that in any case the statute is beyond the rule making power conferred by Sec. 31 (aa). A number of decisions were relied upon in support of the submission that where a provision of law lays down a period within which a public body should perform any function, that provision is merely directory and not mandatory. The question whether a particular provision of a statute is directory or mandatory might well arise in a case where merely a period is specified for performing a duty but the consequences of not performing the duty within that period are not mentioned. ln this case clearly the statute provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof. This proceeds on the basis that if the post is not filled within a year from the date of the nomination by the Selection Committee the post should be readvertised. So unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannot be said to be valid. Though the reason for the delay in making the appointment was the wrongful refusal of the Executive Council to act in pursuance of the recommendation of the Selection Committee and the pendency of the writ petition filed by the appellant in the High Court, that does not in any way minimise the effect of sub-rule (2) of Statute No. 21-AA. The position may well have been otherwise if there had been a stay or direction prohibiting the Exectuive Council from making the appointment. Such is not the case here. We do not therefore think it necessary to discuss the various decisions relied upon by the appellant. Nor can we agree that the statute in question is beyond the rule making power. Under Section 31 (aa) statutes can be made with regard to the mode of appointments of teachers of the University. The statute provides that the appointment should be made after the post is advertised and the applications received considered by a committee of selection. It also provides that if no appointment is made to the post within one year from the date of nomination by the selection committee the post shall be readvertised. The rule therefore certainly relates to the mode of appointment. It cannot be said to be unrelated to the mode of appointment. It apparently proceeds on the basis that after the lapse of a year there may be more men to choose from. Unless it could be said that the rule has no relation to the power conferred by the rule-making power it cannot be said to be beyond the rule-making power. Such is not position here.We are also unable to agree that the statute is in conflict with or in derogation of the provisions of the statute.5. It was then argued on behalf of the appellant that the post of the Professor of Zoology is not a public office and therefore a writ of quo warranto cannot be issued. The decisions in Dr. P. S. Venkataswamy v. University of Mysore (AIR 1964 Mys 159) and S. B. Ray v. P. N. Banerjee, (1968) 72 Cal WN 50 were relied upon to contend that the post in question is not a public office and therefore no writ of quo warranto can issue. But it should be noticed that no writ of quo warranto was issued in this case. What was issued was a writ of certiorari as the order of the High Court only quashed the resolution of the Executive Council dated 18-2-1973. In his petition the respondent had asked for (1) a writ of certiorari. (2) a writ of mandamus, and (3) a writ of quo warranto. What was issued was a writ of certiorari. The question whether a writ of quo warranto could issue in the circumstances of this case and whether the office was a public office was not raised or argued before the High Court. Indeed it was not even raised in the special leave petition filed by the appellant. We cannot therefore decide the present appeal on the basis that what was issued was a writ of quo warranto.
### Response:
0
### Explanation:
3. Quite clearly the appointment made more than a year after the date of nomination by the Selection Committee is not in accordance with the statute 21-AA. The requirement of the statute is that the post should be readvertised before making an appointment if the appointment is not made within a year of the Selection Committeesquestion whether aparticular provision of a statute is directory ormandatory might well arise in a case where merely a period is specified for performing a duty but the consequences of not performing the duty within that period are not mentioned. ln this case clearly the statute provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof. This proceeds on the basis that if the post is not filled within a year from the date of the nomination by the Selection Committee the post should be readvertised. So unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannot be said to be valid. Though the reason for the delay in making the appointment was the wrongful refusal of the Executive Council to act in pursuance of the recommendation of the Selection Committee and the pendency of the writ petition filed by the appellant in the High Court, that does not in any way minimise the effect of sub-rule (2) of Statute No. 21-AA. The position may well have been otherwise if there had been a stay or direction prohibiting the Exectuive Council from making the appointment. Such is not the case here. We do not therefore think it necessary to discuss the various decisions relied upon by the appellant. Nor can we agree that the statute in question is beyond the rule making power. Under Section 31 (aa) statutes can be made with regard to the mode of appointments of teachers of the University. The statute provides that the appointment should be made after the post is advertised and the applications received considered by a committee of selection. It also provides that if no appointment is made to the post within one year from the date of nomination by the selection committee the post shall be readvertised. The rule therefore certainly relates to the mode of appointment. It cannot be said to be unrelated to the mode of appointment. It apparently proceeds on the basis that after the lapse of a year there may be more men to choose from. Unless it could be said that the rule has no relation to the power conferred by the rule-making power it cannot be said to be beyond the rule-making power. Such is not position here.We are also unable to agree that the statute is in conflict with or in derogation of the provisions of theit should be noticed that no writ of quo warranto was issued in this case. What was issued was a writ of certiorari as the order of the High Court only quashed the resolution of the Executive Council dated 18-2-1973. In his petition the respondent had asked for (1) a writ of certiorari. (2) a writ of mandamus, and (3) a writ of quo warranto. What was issued was a writ of certiorari. Thequestion whether awrit of quo warranto could issue in the circumstances of this case and whether the office was a public office was not raised or argued before the High Court. Indeed it was not even raised in the special leave petition filed by the appellant. We cannot therefore decide the present appeal on the basis that what was issued was a writ of quo warranto.
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Hukum Chand Malhotra Vs. Union Of India
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the appellant merited any one of the three penalties mentioned therein and asked the appellant to show cause why any one of the aforesaid three penalties should not be imposed on him.We see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him. 9. We turn now to certain other decisions on which learned counsel for the appellant has relied. They are: Jatindra Nath Biswas v. R. Gupta, 58 Cal WN 128; (AIR 1954 Cal 383 ); Dayanidhi Rath v. B. S. Mohanty, (S) AIR 1955 Orissa 33 and Lakshmi Narain Gupta v. A. N. Puri, AIR 1954 Cal 535. In the case of Jatindra Nath Biswas 58 Cal WN 128: (AIR 1954 Cal 383 ) no second show cause notice was given and the decision proceeded on that footing. Sinha J. observed, however. Where there is an enquiry, not only must he have an opportunity of contesting his case before the enquiry, but, before the punishment is imposed upon him, he must be told about the result of the enquiry and the exact punishment which is proposed to be inflicted. 10. Mr. Chatterjee has emphasised the use of the word exact. As we have pointed out, the decision proceeded on a different footing and was not rested on the ground that only one punishment must be mentioned in the second show cause notice. The decision in Dayanidhi Raths case, (S) AIR 1955 Orissa 33, proceeded on the footing that if the punishment that is tentatively proposed against a civil servant is of a graver kind, he can be awarded punishment of a lesser kind; but if the punishment that is tentatively proposed is of a lesser kind, there will be prejudice in awarding a graver form of punishment. What happened in that case was that the show cause notice stated that in view of the Enquiring Officers findings contained in the report with which the Secretary agreed and in consideration of the past record of the Government servant concerned, it was proposed to remove him from Government service; in another part of the same notice, however, the Government servant concerned was directed to show cause why the penalty of dismissal should not be inflicted or the charges proved against him. Thus, in the same notice two punishments were juxtaposed in such a way that it was difficult to say that the punishing authority had applied its mind and tentatively come to a conclusion as to what punishment should be given. It was not a case where the punishing authority said that either of the two punishments might be imposed in the alternative; on the contrary, in one part of the notice the punishing authority said that it was proposed to remove the Government servant concerned and in another part of the notice it said that the proposed punishment was dismissal. In Lakshmi Narain Guptas case. AIR 1954 Cal 335 , the notice called upon the petitioner to show cause why disciplinary action, such as reduction in rank, withholding of increments etc. should not be taken against him. The learned Judge pointed out that there were seven items of penalties under R. 49 of the Civil Service (Classification, Control and Appeal) Rules, and the notice did not indicate that the punishing authority had applied its mind and come to any tentative conclusion as to the imposition of any of the punishments mentioned in that rule. On that footing it was held that there was no compliance with the provisions in Art. 311(2) of the Constitution. We do not, therefore, take these decisions as laying down that whenever more than one punishment is mentioned in the second show cause notice, the notice must be held to be bad. If these decisions lay down any such rule, we must hold them to be incorrect. 11. We have come to the conclusion that the three decisions on which learned counsel for the appellant has placed his reliance do not really support the extreme contention canvassed for by him, and we are further of the view that the show cause notice dated April 14, 1954, in the present case did not contravene the provisions of Art. 311(2) of the Constitution. The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. 12. This disposes of the principal point in controversy before us. Mr. Chatterjee referred to certain mistakes of reference in the order of the President dated October 1, 1954. Instead of referring to R. 15 of the Government Servants Conduct Rules, R. 13 was referred to. There was also a reference to para. 5 of a particular Government order which prohibited Government servants from taking up commercial employment within two years of retirement. Mr. Chatterjee submitted that this particular order did not apply to Government servants in Class II.We do not think that the inaccurate references were of any vital importance. In effect and substance the order of removal dated October 1, 1954, was based on the ground that the appellant violated R. 15 of the Government Servants Conduct Rules and R. 11 of the Fundamental Rules; he accepted private employment without sanction of Government while he was still in Government service.That was the basis for the enquiry against the appellant and that was the basis for the order of removal passed against him.
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0[ds]It is obvious, and Art.311(2) expressly says so, that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him; for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him, he does not merit the extreme penalty of dismissal, but merits a lesser punishment, such as removal or reduction in rank. If it is obligatory on the punishing authority to state in the show cause notice at the second stage the exact or particular punishment which is to be inflicted, then a third notice will be necessary if the State Government accepts the representation of the Government servant concerned. This will be against the very purpose for which the second show cause notice was issuedWe see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on himhave come to the conclusion that the three decisions on which learned counsel for the appellant has placed his reliance do not really support the extreme contention canvassed for by him, and we are further of the view that the show cause notice dated April 14, 1954, in the present case did not contravene the provisions of Art. 311(2) of the Constitution. The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to himIn effect and substance the order of removal dated October 1, 1954, was based on the ground that the appellant violated R. 15 of the Government Servants Conduct Rules and R. 11 of the Fundamental Rules; he accepted private employment without sanction of Government while he was still in Government service.That was the basis for the enquiry against the appellant and that was the basis for the order of removal passed against him.
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the appellant merited any one of the three penalties mentioned therein and asked the appellant to show cause why any one of the aforesaid three penalties should not be imposed on him.We see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him. 9. We turn now to certain other decisions on which learned counsel for the appellant has relied. They are: Jatindra Nath Biswas v. R. Gupta, 58 Cal WN 128; (AIR 1954 Cal 383 ); Dayanidhi Rath v. B. S. Mohanty, (S) AIR 1955 Orissa 33 and Lakshmi Narain Gupta v. A. N. Puri, AIR 1954 Cal 535. In the case of Jatindra Nath Biswas 58 Cal WN 128: (AIR 1954 Cal 383 ) no second show cause notice was given and the decision proceeded on that footing. Sinha J. observed, however. Where there is an enquiry, not only must he have an opportunity of contesting his case before the enquiry, but, before the punishment is imposed upon him, he must be told about the result of the enquiry and the exact punishment which is proposed to be inflicted. 10. Mr. Chatterjee has emphasised the use of the word exact. As we have pointed out, the decision proceeded on a different footing and was not rested on the ground that only one punishment must be mentioned in the second show cause notice. The decision in Dayanidhi Raths case, (S) AIR 1955 Orissa 33, proceeded on the footing that if the punishment that is tentatively proposed against a civil servant is of a graver kind, he can be awarded punishment of a lesser kind; but if the punishment that is tentatively proposed is of a lesser kind, there will be prejudice in awarding a graver form of punishment. What happened in that case was that the show cause notice stated that in view of the Enquiring Officers findings contained in the report with which the Secretary agreed and in consideration of the past record of the Government servant concerned, it was proposed to remove him from Government service; in another part of the same notice, however, the Government servant concerned was directed to show cause why the penalty of dismissal should not be inflicted or the charges proved against him. Thus, in the same notice two punishments were juxtaposed in such a way that it was difficult to say that the punishing authority had applied its mind and tentatively come to a conclusion as to what punishment should be given. It was not a case where the punishing authority said that either of the two punishments might be imposed in the alternative; on the contrary, in one part of the notice the punishing authority said that it was proposed to remove the Government servant concerned and in another part of the notice it said that the proposed punishment was dismissal. In Lakshmi Narain Guptas case. AIR 1954 Cal 335 , the notice called upon the petitioner to show cause why disciplinary action, such as reduction in rank, withholding of increments etc. should not be taken against him. The learned Judge pointed out that there were seven items of penalties under R. 49 of the Civil Service (Classification, Control and Appeal) Rules, and the notice did not indicate that the punishing authority had applied its mind and come to any tentative conclusion as to the imposition of any of the punishments mentioned in that rule. On that footing it was held that there was no compliance with the provisions in Art. 311(2) of the Constitution. We do not, therefore, take these decisions as laying down that whenever more than one punishment is mentioned in the second show cause notice, the notice must be held to be bad. If these decisions lay down any such rule, we must hold them to be incorrect. 11. We have come to the conclusion that the three decisions on which learned counsel for the appellant has placed his reliance do not really support the extreme contention canvassed for by him, and we are further of the view that the show cause notice dated April 14, 1954, in the present case did not contravene the provisions of Art. 311(2) of the Constitution. The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. 12. This disposes of the principal point in controversy before us. Mr. Chatterjee referred to certain mistakes of reference in the order of the President dated October 1, 1954. Instead of referring to R. 15 of the Government Servants Conduct Rules, R. 13 was referred to. There was also a reference to para. 5 of a particular Government order which prohibited Government servants from taking up commercial employment within two years of retirement. Mr. Chatterjee submitted that this particular order did not apply to Government servants in Class II.We do not think that the inaccurate references were of any vital importance. In effect and substance the order of removal dated October 1, 1954, was based on the ground that the appellant violated R. 15 of the Government Servants Conduct Rules and R. 11 of the Fundamental Rules; he accepted private employment without sanction of Government while he was still in Government service.That was the basis for the enquiry against the appellant and that was the basis for the order of removal passed against him.
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It is obvious, and Art.311(2) expressly says so, that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him; for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him, he does not merit the extreme penalty of dismissal, but merits a lesser punishment, such as removal or reduction in rank. If it is obligatory on the punishing authority to state in the show cause notice at the second stage the exact or particular punishment which is to be inflicted, then a third notice will be necessary if the State Government accepts the representation of the Government servant concerned. This will be against the very purpose for which the second show cause notice was issuedWe see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on himhave come to the conclusion that the three decisions on which learned counsel for the appellant has placed his reliance do not really support the extreme contention canvassed for by him, and we are further of the view that the show cause notice dated April 14, 1954, in the present case did not contravene the provisions of Art. 311(2) of the Constitution. The appellant had a reasonable opportunity of showing cause against the action proposed to be taken in regard to himIn effect and substance the order of removal dated October 1, 1954, was based on the ground that the appellant violated R. 15 of the Government Servants Conduct Rules and R. 11 of the Fundamental Rules; he accepted private employment without sanction of Government while he was still in Government service.That was the basis for the enquiry against the appellant and that was the basis for the order of removal passed against him.
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M/S. ULTRATECH CEMENT LTD. & ANR. Vs. STATE OF RAJASTHAN & ORS
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extent of 75%, as availed by it pursuant to the Entitlement Certificates dated 29.04.2011 and 24.11.2011 erroneously issued by the State Level Screening Committee. The SLSC was rightly directed to issue the new Entitlement Certificate for subsidy to the limit of 50% of total tax to the said Kotputli Unit of the appellant company; and the company was rightly directed to refund the amount of subsidy availed in excess of 50% of payable and deposited tax. 31.1. However, in the impugned order dated 12.03.2018, the appellant was also directed to make such refund together with interest at the rate of 18% per annum. As observed hereinbefore, even if the decision of State Government to recall 25% availed subsidy is upheld, the point still requiring consideration would be as to whether the State is justified in seeking to recover interest at this rate of 18% per annum? Levy of Interest 32. Coming to the question of levy of interest on the amount sought to be recovered, it has been contended on behalf of the appellants that Clause 10 of RIPS-2003 providing for charging of interest has no application to the present case because grant of 25% subsidy has been revoked not because of any default committed by the appellants but only because of a change of opinion by the respondents after about eight years. The respondents, on the other hand, assert that if benefits have been received under a mistake, the same must be returned with interest so as to avoid unjust enrichment. 33. It remains undeniable that Clause 10 of RIPS-2003, providing Terms and Conditions attached to the benefits availed under the Scheme, envisaged that the breach of any of the condition would make the Capital Investment Subsidy/ exemption amount liable to be recovered as Tax or arrears of land revenue along with interest @ 18% per annum from the date from which the Capital Investment Subsidy was provided. It is not the case of the respondents that the appellant had committed breach of any of the conditions enumerated in Clause 10 of the Scheme and that the excessive amount of subsidy (25%) was being recovered because of any such breach. As noticed, entitlement of the appellant to 50% subsidy has not been questioned; and the only question had been as to whether the appellant company could have availed 75% subsidy? However, disbursement of such 75% subsidy to the appellant was only on the basis of the erroneous decisions taken and Entitlement Certificates dated 29.04.2011 and 24.11.2011 issued by SLSC. 33.1. Even when the said decisions of SLSC are found erroneous and invalid; and the appellant company is found entitled to subsidy only to the extent of 50%, it cannot be said that the excess 25% is relatable to breach of any of the conditions of the Scheme on the part of the appellant nor the appellant could be said to have availed the excessive amount of subsidy by way of any misrepresentation. The basic fault had been on the part of SLSC in taking erroneous decisions and in issuing unauthorised Entitlement Certificates dated 29.04.2011 and 24.11.2011. The respondent State took an abnormally long time in realising the mistake on the part of its functionaries and took corrective measures only after the entire benefit had already been availed of inasmuch as the proceedings for recall were initiated only in the month of July 2017 which led to the impugned order dated 12.03.2018 and then, the Re-revised Entitlement Certificate was issued only on 02.04.2018. 33.2. Apart from the above, it is also noticed that even when the Scheme envisaged interest at the rate of 18% per annum, in Form 2 filed by the appellants, undertaking was stated to repay the amount of subsidy, in case of availing excessive benefits or non- compliance with the provisions of the Scheme, with interest at the rate of 12% per annum (Vide the declaration extracted in paragraph 7.9.2.). Both the parties had proceeded with reference to the said undertaking furnished on behalf of the appellant and the same is required to be treated as a binding term of contract between them. 33.3. Hence, when availing of subsidy to the tune of 75% (and thereby availing 25% in excess) is not referable to any misrepresentation by the appellants and there is no allegation of breach of any of the conditions of RIPS-2003 by the appellants while availing such benefit, the respondent cannot be held entitled to demand interest at the rate stipulated in Clause 10 of RIPS-2003. However, and at the same time, when the appellant company had obtained undue advantage in monetary terms by availing 25% extra subsidy; and had given undertaking to refund any excessive benefit with interest at the rate of 12% per annum, in our view, the appellant company remains liable to refund the excess amount together with interest at the rate agreed upon, i.e., 12% per annum. 33.4. In the given set of facts and circumstances of this case, reliance on the decisions of this Court in India Carbon Ltd., J.K. Synthetics Ltd. and Maruti Wire Industries Pvt. Ltd. (supra), dealing the scheme of particular taxing statutes for charging of interest, does not make out a case of total waiver of interest because the fact remains that the appellant company had indeed availed excessive 25% subsidy under the non-statutory scheme and unequivocal undertaking was stated on its behalf to refund the excess amount together with interest @ 12% per annum. 33.5. It is also noticed that as per the submissions of the appellants, by way of recovery proceedings adopted by the State after the decision of High Court, entire of the principal amount of excess subsidy, i.e., Rs.15,96,37,794/- has already been recovered. In the totality of circumstances and relevant features of this case, in our view, interest of justice shall be served if the respondents are allowed interest at the rate of 12% per annum from the date of availing of excessive (25%) subsidy by the appellants and until recovery/payment. CONCLUSION
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1[ds]18. We have given anxious consideration to the points so arising in this case with reference to the rival submissions and the law applicable; and have scanned through the entire recordEntitlement of the Appellant to Capital Investment Subsidy : The extent thereof : effect of the decision of BIDIIn our view, these submissions suffer from several shortcomings, where a fine but well-defined line of separation between the resolution/decision of BIDI dated 01.04.2006 and the decision of SLSC dated 17.3.2011, is ignored19.1. As noticed, the application earlier made by the company was considered in the Pre-BIDI meeting dated 28.03.2006 and the recommendations therein had only been to the effect that the cement package recently announced and RIPS-2003 should be applicable to the company. The decision of BIDI in its meeting dated 01.04.2006 had also been specifically in line of the Pre-BIDI recommendations where it was directed that the recently announced cement package and RIPS-2003 will be applicable on the company. At the given stage of Pre-BIDI recommendations dated 28.03.2006 and the decision of BIDI dated 01.04.2006, the aforesaid sub-clauses (vi) and (vii) of Clause 7 of RIPS-2003 were in existence and, in fact, the phrase recently announced cement package precisely referred to the said provisions of sub-clauses (vi) and (vii), which had been inserted to Clause 7 of RIPS-2003 on 02.12.2005. Moreover, even when BIDI stated that recently announced cement package would be applicable to the company, it was coupled with the requirement of applicability of the Scheme, i.e., RIPS-2003. After the aforesaid decision of BIDI dated 01.04.2006, the company, in its letter dated 26.04.2006 to the Commissioner of Industries, sought registration in terms of sub-clause (vii) of Clause 7 of RIPS-2003 for a new cement plant/captive power plant, intended to be established at Kotputli. However, there had been significant developments/revisions in relation to RIPS-2003 after the said decision of BIDI dated 01.04.2006 and the application of the company dated 26.04.2006, where the said sub- clauses (vi) and (vii) of Clause 7 were specifically deleted from the Scheme on 28.04.2006. Noticeably, no decision had been taken by SLSC to grant subsidy to the company in terms of the then existing sub-clauses (vi) and (vii) of Clause 7 until 28.04.2006. The application later made by the company on 21.02.2010 and the decision thereupon taken by SLSC on 17.03.2011 do not and cannot co-relate with the decision of BIDI dated 01.04.2006 whose initial part, i.e., recently announced cement package became redundant with the aforesaid amendment of Clause 7 of RIPS-2003 and deletion of its sub-clauses (vi) and (vii)19.2. Apart from the above, it is also significant to notice that the competent authority, to sanction subsidy under RIPS-2003, had only been SLSC in terms of Clause 6 thereof. Though it has been strenuously argued by the learned senior counsel for the appellant that BIDI was a high-powered body with the Chief Minister being its Chairperson and it has also been asserted that the Secretary Finance had equally been a Member of BIDI as also SLSC, but, we are afraid, these submissions do not advance the cause of the appellant in any manner. Even if BIDI had been a high-powered body, its resolutions or even directives could have only been read in conformity with the provisions applicable to any particular proposition; and the fact that one of the Secretary had been a member of both BIDI and SLSC, the resolution of BIDI could not have been imported into the decision making process of SLSC beyond what was permissible under the Scheme20. The other limb of submissions that BIDI had granted 75% subsidy under proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 remains unacceptable for a variety of reasons. It is apparent on the face of the record that neither in Pre-BIDIs recommendation dated 28.03.2006 nor in the final decision of BIDI dated 01.04.2006, there had at all been any proposition for invocation and application of the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003. The application made on behalf of the company had precisely been with reference to the contents of the said sub-clauses (vi) and (vii) of Clause 7 seeking 75% subsidy, 45% being allowable upfront and remaining 30% in the form of interest and wage/employment subsidy, with cap of interest subsidy to the extent of 5% of the documented rate of interest. There had never been any proposal before BIDI in the case of the appellant company to invoke the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 so as to increase the maximum limit of subsidy to 75%. Proceeding ahead of the decision of BIDI dated 01.04.2006, the fact that the company was consciously seeking the benefit under sub-clause (vii) of Clause 7 of RIPS-2003 is again evident on the face of the record on a bare look at the contents of its application dated 26.04.2006. No decision on this application was taken; and within two days of making of this application, the State Government amended RIPS-2003 and deleted the aforesaid sub-clauses (vi) and (vii) of Clause 7. The company made a desperate attempt to persuade the State Government to withdraw such amendment of deletion of sub-clauses (vi) and (vii) of Clause 7 of the Scheme and to grant benefit of those deleted provisions by way of its representation dated 26.05.2006 but, the communication thereafter sent on 17.06.2006 to the company by BIP was again to the effect that the company would be eligible for the concessions as contained in RIPS-2003. Even in the MoU dated 30.11.2007, what the State Government undertook was to extend support in the form of providing incentives as permissible under RIPS-2003 together with additional support as per the prevalent policy20.1. In our view, whether each of the aforesaid background aspects is seen in isolation or whether all these aspects are put together, it cannot be deduced, by any stretch of imagination, that a conscious decision was ever taken by BIDI at any stage that the appellant company would be extended any differential and advantageous treatment by allowing 75% subsidy in place of the ordinarily allowable 50%20.2. Invocation of proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 seems to have only been a creation of SLSC in its meeting dated 17.03.2011 while dealing with the application made by the appellant on 21.02.2010. Significantly, even in the said application, what the appellant claimed had only been the concession in terms of sub-clause (vi) of Clause 7 of RIPS-2003. The claim precisely was that the benefits may be allowed in terms of the said notification dated 02.12.2005. The SLSC, while taking up the said application, on its own, connected the prayer of the appellant to the decision of BIDI and, for that matter, read as if BIDIs decision had been to grant subsidy to the extent of 75% in terms of the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003. We are unable to find any rationale and any logic that SLSC, in its meeting dated 17.03.2011, imported the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 into the decision of BIDI dated 01.04.2006 and then, applied such incorrect reading of BIDIs order in its decision making process so as to grant 75% subsidy. The SLSC, who had the power to grant subsidy upto 50% could not have granted beyond this limit by unwarranted application of the decision of BIDI dated 01.04.2006 and that too with its misconstruction; by reading into it such powers, which had neither been invoked nor exercised by BIDI. The decision of SLSC dated 17.03.2011 and its repeat decision dated 24.11.2011, turn out to be wholly perverse and could only be disapproved21. Taking up the question if the decision of BIDI is relatable to the grant of a customised package, the answer would be in the negative without requiring much discussion because such grant of customised incentive package for any particular company or establishment was governed by Clause 6-A of RIPS-2003 that had an entirely different prescribed authority in the form of a Committee, who was supposed to examine individual cases and could have made recommendation for sanction of the customised incentive package through BIDI. In the entire length of dealings in this matter, we are unable to find any such decision by the Committee referred to in Clause 6-A and any recommendation for customised incentive package in relation to the appellant. The decision of BIDI dated 01.04.2006 also does not refer to nor is relatable with any customised package meant for the appellant company22. In an overall conspectus of the record and various amendments/revisions of RIPS- 2003, it appears that though at one stage (i.e., on 02.12.2005), the State Government thought it proper to announce an entirely different treatment to cement units by extending 75% subsidy to them with a different methodology and hence, inserted sub-clauses (vi) and (vii) to Clause 7 of RIPS-2003 but, it did not continue with that policy and deleted the said sub-clauses on 28.04.2006. It remains trite that extending of any incentive in the form of exemption, rebate, concession or subsidy is a matter of the policy of the Government and for that matter, fiscal policy. Ordinarily, such framing of the policy remains within the domain of the Government; and the Government is entitled to frame a particular policy and to alter the same, as deemed fit and proper. As to whether the cement industry was to be granted 75% subsidy under RIPS-2003 or not was definitely a matter of the policy of the Government; and when such a policy was not in existence at the time of consideration of the application of the appellant, no benefit could have been claimed under a non-existent policy23. In the given set of facts and circumstances, in our view, the Additional Chief Secretary has rightly held that SLSCs decision dated 17.03.2011 and its repeat decision dated 24.11.2011 had been erroneous on the very fundamentals where it was assumed as if BIDI had already sanctioned 75% subsidy to the company. The High Court has also independently examined the entire matter in requisite details and we are unable to find any infirmity when the High Court has held that the appellant company was only entitled to subsidy to the extent of 50% of the tax payable and deposited and not to the extent of 75%.SLSCs decision of granting 75% subsidy to the appellant: whether a possible view of the matter24. The suggestion on behalf of the appellant company, that if two views were possible and the SLSC in its earlier decision had taken one of the views, then the same could not have been interfered with, has its own shortcomings24.1. In the first place, the possibility of so called other view (the wrong one) could arise only if SLSC is held entitled to simply turn itself away from the applicable provisions of the Scheme while ignoring the fact that sub-clauses (vi) and (vii) of Clause 7 had already been deleted; and is simultaneously conferred with dubious discretion to interpret the decision of BIDI in whatever manner it would chose to. Obviously, such arbitrary authority or unfettered discretion is not available to any decision taking body; and could least be countenanced for a responsible body of the Government, like SLSC, who deals with public exchequer. Having examined the record in its totality, we have not an iota of doubt that the initial decision of SLSC had not only been erroneous but had been highly perverse, reaching the level of absurdity. The view of SLSC cannot be regarded as a possible view of the matter from any standpoint or any angle24.2. Apart from the above, even if it be assumed for the sake of argument that there was any ambiguity in the applicable provisions of RIPS-2003 or the decision of BIDI, we are clearly of the view that the benefit of any such ambiguity could not have been extended to the appellant company. If at all there had been any ambiguity, the benefit thereof would have only gone in favour of revenue for the simple reason that under the provisions in question, the State had agreed, by way of incentive, to part with a portion of its revenue. Such provisions, whether in the statute or in the non-statutory document, by their very nature, are subject to strict interpretation so far as their applicability is concerned. The principles of law in this regard are well settled with the Constitution Bench decision of this Court in the case of Dilip Kumar & Co. (supra).Recently, in the case of Ramnath & Co. v. Commissioner of Income Tax: Civil Appeal Nos.2506-2509 of 2020 decided on 05.06.2020, while dealing with an incentive provision contained in Section 80-O of the Income Tax Act, 1961 (Hereinafter referred to as the Act of 1961) , this Court has taken note of the principles laid down in Dilip Kumar & Co. and has held, inter alia, as under :-17.3. In view of above and with reference to several other decisions, in Dilip Kumar & Co., the Constitution Bench summed up the principles as follows:-66. To sum up, we answer the reference holding as under:66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue. 66.3. The ratio in Sun Export case is not correct and all the decisions which took similar view as in Sun Export case stand overruled.(emphasis in bold supplied)17.4. Obviously, the generalised, rather sweeping, proposition stated in the case of Sun Export Corporation (supra) as also in other cases that in the matters of taxation, when two views are possible, the one favourable to assessee has to be preferred, stands specifically disapproved by the Constitution Bench in Dilip Kumar & Co. (supra). It has been laid down by the Constitution Bench in no uncertain terms that exemption notification has to be interpreted strictly; the burden of proving its applicability is on the assessee; and in case of any ambiguity, the benefit thereof cannot be claimed by the subject/assessee, rather it would be interpreted in favour of the revenue19. Without expanding unnecessarily on variegated provisions dealing with different incentives, suffice would be to notice that the proposition that incentive provisions must receive liberal interpretation or to say, leaning in favour of grant of relief to the assessee is not an approach countenanced by this Court. The law declared by the Constitution Bench in relation to exemption notification, proprio vigore, would apply to the interpretation and application of any akin proposition in the taxing statutes for exemption, deduction, rebate et al., which all are essentially the form of tax incentives given by the Government to incite or encourage or support any particular activity……24.3. In view of the above, contention on the part of the appellant about existence of any ambiguity in the matter and extending the benefit of ambiguity to itself could only be, and is, rejectedDoctrine of Contemporanea Expositio : if applicable?In our view, neither this doctrine could be invoked in the present case nor the principles related therewith could be applied.25.3. Suffice it to observe for the present purpose that in essence, the doctrine of Contemporanea Expositio is applied as a guide to the interpretation of a statute or even document by referring to the exposition that the same had received from competent authority at the relevant point of time. This doctrine is also relatable to the doctrine of stare decisis whereunder, an exposition standing for a long length of time, is considered to be a law settled and is applied as such. As regards the contemporaneous construction placed by the administrative or executive officers charged with executing statute, the Courts lean in favour of attaching considerable weight to the same but, it cannot be laid down that understanding of a particular administrative or executing authority is always fait accompli and has to be applied even if erroneous. The true principle is just to the contrary: that is, if a construction placed by the contemporary authority is found to be clearly wrong or erroneous, the same deserves to be disregarded25.4. In the case of Spentex Industries (supra), the question was as to whether the manufacturer/exporter was entitled to rebate of excise duty paid both on the inputs and on the manufactured product, when the excise duty was paid on the manufactured product and also on the input, which had gone into manufacturing and the manufactured product was exported. It was in the context of the aforesaid question that this Court, in the process of interpretation of the relevant Central Excise Rules, 2002 and the notification thereunder, referred to Contemporanea Expositio in regard to the notifications issued by the Government in giving effect to the Rule in question; and it was observed that when the Centre, who had framed the Rules as also issued notifications, had been of the opinion that rebate was to be allowed on both forms of excise duty, the Government was bound thereby. This decision does not even remotely apply to the case at hand and the erroneous decisions of SLSC are not fait accompli merely because SLSC chose to put a wrong construction on the decision of BIDI. On the facts and in the circumstances of the present case, invocation of the doctrine of Contemporanea Expositio on behalf the appellant remains entirely inapt and the contentions in that regard could only be rejected25.5. That the doctrine of Contemporanea Expositio cannot be invoked in the case of present nature would also be clear by visualising the result, if at all this doctrine is applied. It is not far to seek that if at all this doctrine is applied, the consequence would be that howsoever erroneous a decision by the executive or administrative authority may be, once it emanates from the understanding of some of the officers or authorities, the same would acquire immunity from scrutiny for all time to come. Such has never been the intent of the doctrine of Contemporanea Expositio nor could such a result be countenanced.26. Another line of submissions on behalf of the appellant based on the principles of promissory estoppel remains equally baseless. Of course, while rejecting such a contention, the High Court observed that this doctrine cannot be invoked against a statute but, at the same time, the High Court also categorically found that in fact, no representation was held out to the appellant by BIDI or SLSC as sought to be alleged26.1. RIPS-2003 had admittedly been a non-statutory scheme but that hardly makes a difference looking to the nature of purport of this Scheme whereby the State was ultimately to extend the benefit by reducing its intake of the amount of Sales Tax/VAT; and such an intake is indeed governed by the statute. This apart, as noticed hereinbefore, it cannot be deduced that a conscious decision was ever taken at any stage or at any level that the appellant was to be extended any differential and advantageous treatment by SLSC and was to be allowed 75% subsidy in place of the ordinarily allowable 50%. BIDI never issued any direction to SLSC to grant 75% subsidy to the appellant. It merely directed that the recently announced cement package and RIPS-2003 shall be applicable on the company. Obviously, the case of the appellant was required to be dealt with by SLSC only in accordance with the applicable provisions contained in RIPS-2003. The provisions under which the appellant could have availed tax subsidy upto 75% i.e., the said sub-clauses (vi) and (vii) of Clause 7, were deleted on 28.04.2006, only two days after the company submitted the application dated 26.04.2006 for availing benefit thereunder. The repeat request of the company to withdraw such deletion and to allow benefit under the said deleted sub-clauses, under its representation dated 26.05.2006, did not meet with any success and the only response of the Government through BIP was to the effect that the company would be eligible for concessions as contained in RIPS-2003. Even in the MoU dated 30.11.2007, what the State undertook was only to provide incentives as permissible under RIPS-2003 together with additional support as per the prevalent policy. So far availing 75% subsidy under proviso to Clauses 7(i)(a) and 7(i)(b) is concerned, the appellant was required to make an application to SLSC for that purpose whereupon SLSC could have referred it to BIDI but, neither any such application was made by the appellant nor any such matter was ever placed before BIDI until it remained in existence i.e., 07.06.2009. In an overall view of the matter, it is difficult to find that at any stage, any such representation was made by the State Government which led the company to alter its position26.2. Besides the above, when the decisions of SLSC dated 17.03.2011 and 24.04.2011 turn out to be unauthorised and not in accord with the applicable provisions of the Scheme, the principles of promissory estopple cannot be invoked for their enforcement. In this regard, reference to the following passage from the decision of this Court in the case of Dr. Ashok Kumar Maheshwari v. State of U.P. & Anr.: (1998) 2 SCC 502 would suffice :-22. Whether a promissory estoppel, which is based on a promise contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India : (1995) 1 SCC 274 as also in Shabi Construction Co. v. City & Industrial Development Corpn.: (1995) 4 SCC 301 wherein it is laid down that the rule of promissory estoppel cannot be invoked for the enforcement of a promise or a declaration which is contrary to law or outside the authority or power of the Government or the person making that promise.(emphasis in bold supplied)26.3. Even otherwise, when the decision of SLSC, or any decision of any authority for that matter, was subject to revision by the Government in terms of Clause 13 of the Scheme, it cannot be suggested that the said power of revision cannot be invoked. In other words, the principles of promissory estoppel cannot operate against such revisional power of the Government. Hence, this part of the contentions also deserves to be, and is, rejected.Exercise of powers of revision by the State Government under Clause 1327. For the self-same reasons aforesaid, the contentions urged on behalf of the appellant against the exercise of power of revision under Clause 13 of RIPS-2003 with reference to the decision of this Court in the case of Malabar Industrial Co. (supra) turn out to be totally devoid of substance.27.1. In Malabar Industrial Co. (supra), this Court construed Section 263 of the Act of 1961 wherein too, the basis for exercise of power of revision by the Principal Commissioner or Commissioner is akin to Clause 13 of RIPS-2003 but with a little difference. Under Section 263 of the Act of 1961, the Commissioner concerned could exercise the power of revision, if he considers that the order passed by the Assessing Officer is erroneous insofar as it is prejudicial to the interests of the Revenue whereas in Clause 13 of RIPS-2003, such power could be exercised by the State Government in Finance Department in relation to an order passed by any screening committee wherever it is found to be erroneous and prejudicial to the interest of the State Revenue27.1.1. For the construction of the aforesaid statutory provision, this Court observed in Malabar Industrial Co. (supra) that the phrase prejudicial to the interest of the Revenue has to be read in conjunction with the expression erroneous for the order passed by the Assessing Officer. In fact, such a process of interpretation is not even required in the present case because the two aspects, i.e., erroneous and prejudicial to the interest of Revenue have already been stated with the conjunction and in Clause 13 of the Scheme27.1.2. It is also noteworthy that even in the case of Malabar Industrial Co. (supra), this Court, ultimately, upheld the exercise of jurisdiction by the Commissioner under Section 263(1) of the Act of 1961, particularly when it was found that there was no material to support the view taken; and the Assessing Officer had failed to make the requisite enquiry, rather the questioned order was found to have been passed by the Assessing Officer without application of mind. This Court, inter alia, observed and held as under :-10. The phrase prejudicial to the interests of the Revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue, for example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income Tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. (See Rampyari Devi Saraogi v. CIT: (1868) 67 ITR 84 (SC) and in Tara Devi Aggarwal v. CIT: (1973) 88 ITR 323.) 11. In the instant case, the Commissioner noted that the Income Tax Officer passed the order of nil assessment without application of mind. Indeed, the High Court recorded the finding that the Income Tax Officer failed to apply his mind to the case in all perspective and the order passed by him was erroneous. It appears that the resolution passed by the Board of the appellant Company was not placed before the Assessing Officer. Thus, there was no material to support the claim of the appellant that the said amount represented compensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry. On these facts the conclusion that the order of the Income Tax Officer was erroneous is irresistible. We are, therefore, of the opinion that the High Court has rightly held that the exercise of the jurisdiction by the Commissioner under Section 263(1) was justified.27.1.3. The observations and conclusions aforesaid, do not advance the cause of the appellant; and if at all of any application, they operate only against the case of the appellant27.2. In the present case, as observed hereinbefore, the initial decision of SLSC was entirely erroneous and cannot be said to be a possible view of the matter. Coupled with that, the said decision was directly prejudicial to the interest of revenue where the State exchequer was to part with extra 25% of the tax amount received or receivable from the appellant. As noticed, the learned ACS, while passing the order dated 12.03.2008 in exercise of such power of revision under Clause 13 of the Scheme, has meticulously examined the entire material and has recorded each and every finding with due regard to the dealings of the parties and the provisions of Scheme as applicable. The exercise of power of revision as per Clause 13 of the Scheme remains unexceptionable in the present case.Effect of availing 75% subsidy for 7 yearsSuch a contention does not carry any substance for the simple reason that sub-clause (b) of Clause 13 of the Scheme specifically provides for a period of five years from the date by which benefits under the Scheme are availed of, to be the period within which the power of revision could be exercised by the State Government. Admittedly, in the present case, the appellant company had availed the benefits until the month of February 2017 and the order of revision was passed on 12.03.2018, well within the period of five years stipulated in the Scheme. In this view of the matter, reference to the decisions like that of this Court in the case of Birla Jute & Industries Ltd. (supra) remains entirely misplaced. The observations in the referred decisions are not relatable to the specific stipulation of the Scheme in question and need no further dilation29. It is also noteworthy that the fundamental questions on the correctness of the decision of SLSC dated 17.03.2011 were indeed raised by the Finance Department of the Government by its letter dated 17.11.2011. As noticed, the Industries Department chose not to respond to the said communication and reminders of the Finance Department for an abnormal length of time and sent a reply only in the month of February 2017. By that time, the appellant had practically availed the entire advantage under the questioned decision of the SLSC. Thereafter, the SLSC re-examined the matter only on 22.05.2017 and left it for the Finance Department to take proceedings under Clause 13 of RIPS-2013. In the given set of facts and circumstances, the suggestion that already availed benefit cannot be withdrawn turn out to be hollow and baseless because whatever was obtained by the appellant, beyond its entitlement, had only been based on an erroneous and unauthorised decision of SLSC. In any case, RIPS-2003 being a matter of concession in the form of subsidy, securing an advantage by the appellant at the cost of public exchequer could not have been allowed and, for the Scheme itself having reserved the powers in the State Government to revise the erroneous and prejudicial order within a period of five years from the date of fully availing of the benefits, such powers have rightly been invoked and exercised by the State Government.Summation on major points for determination30. The discussion foregoing leads to the clear answers that BIDI, in its decision dated 01.04.2006 never directed for grant of 75% subsidy to the appellant company in terms of proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 nor allowed any customised package to the company. The position of record is crystal clear that BIDIs decision dated 01.04.2006 had only been for allowing recently announced cement package to the company and that was also coupled with the requirement of applicability of RIPS-2003. The initial part of this decision of BIDI dated 01.04.2006 and the companys prayer dated 26.04.2006 for registration in terms of sub-clause (vii) of Clause 7 of RIPS-2003 became redundant on 28.04.2006 with the amendment of Clause 7 of RIPS-2003 and deletion of sub-clauses (vi) and (vii) thereof because no decision had been taken by SLSC to grant subsidy to the company in terms of the said sub-clauses (vi) and (vii) of Clause 7 by that date i.e., 28.04.2006. Further, the view taken by SLSC in its initial decisions, to grant 75% subsidy to the appellant on the basis of the decision of BIDI, while reading as if BIDI had taken such decision under proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003, had been entirely perverse and unauthorised; and had not been a possible view of the matter. There had not been any ambiguity in the decision of BIDI; and if at all there was any doubt or ambiguity, the benefit thereof could not have gone to the appellant. The appellant company was entitled to subsidy under RIPS-2003 only to the extent of 50% of tax payable and deposited and not 75% as allowed by SLSC30.1. It is also clear that the doctrine of Contemporanea Expositio neither applies to this case nor inures to the benefit of appellant. The principles of promissory estopple are equally inapplicable and the State Government has rightly exercised the powers of revision under Clause 13 of RIPS-2003 to interfere with the erroneous decisions of SLSC whereby the appellant was allowed 25% extra subsidy and which was, obviously, prejudicial to the interest of revenue; and mere availing of the benefits by the appellant under the erroneous decisions of SLSC is of no effect, particularly when the State Government has exercised the powers of revision within the time stipulated in Clause 13 of RIPS-200331. In view of the above, we have no hesitation in affirming the order of the High Court dated 11.01.2019 and in turn, approving the order of revision dated 12.03.2018 insofar the Additional Chief Secretary held that the Kotputli Cement Works Unit of the appellant company was entitled to Capital Investment Subsidy only to the extent of 50% of the payable and deposited tax and not to the extent of 75%, as availed by it pursuant to the Entitlement Certificates dated 29.04.2011 and 24.11.2011 erroneously issued by the State Level Screening Committee. The SLSC was rightly directed to issue the new Entitlement Certificate for subsidy to the limit of 50% of total tax to the said Kotputli Unit of the appellant company; and the company was rightly directed to refund the amount of subsidy availed in excess of 50% of payable and deposited tax31.1. However, in the impugned order dated 12.03.2018, the appellant was also directed to make such refund together with interest at the rate of 18% per annum.33. It remains undeniable that Clause 10 of RIPS-2003, providing Terms and Conditions attached to the benefits availed under the Scheme, envisaged that the breach of any of the condition would make the Capital Investment Subsidy/ exemption amount liable to be recovered as Tax or arrears of land revenue along with interest @ 18% per annum from the date from which the Capital Investment Subsidy was provided. It is not the case of the respondents that the appellant had committed breach of any of the conditions enumerated in Clause 10 of the Scheme and that the excessive amount of subsidy (25%) was being recovered because of any such breach.As noticed, entitlement of the appellant to 50% subsidy has not been questioned; and the only question had been as to whether the appellant company could have availed 75% subsidy?However, disbursement of such 75% subsidy to the appellant was only on the basis of the erroneous decisions taken and Entitlement Certificates dated 29.04.2011 and 24.11.2011 issued by SLSC.33.1. Even when the said decisions of SLSC are found erroneous and invalid; and the appellant company is found entitled to subsidy only to the extent of 50%, it cannot be said that the excess 25% is relatable to breach of any of the conditions of the Scheme on the part of the appellant nor the appellant could be said to have availed the excessive amount of subsidy by way of any misrepresentation. The basic fault had been on the part of SLSC in taking erroneous decisions and in issuing unauthorised Entitlement Certificates dated 29.04.2011 and 24.11.2011. The respondent State took an abnormally long time in realising the mistake on the part of its functionaries and took corrective measures only after the entire benefit had already been availed of inasmuch as the proceedings for recall were initiated only in the month of July 2017 which led to the impugned order dated 12.03.2018 and then, the Re-revised Entitlement Certificate was issued only on 02.04.201833.2. Apart from the above, it is also noticed that even when the Scheme envisaged interest at the rate of 18% per annum, in Form 2 filed by the appellants, undertaking was stated to repay the amount of subsidy, in case of availing excessive benefits or non- compliance with the provisions of the Scheme, with interest at the rate of 12% per annum (Vide the declaration extracted in paragraph 7.9.2.). Both the parties had proceeded with reference to the said undertaking furnished on behalf of the appellant and the same is required to be treated as a binding term of contract between them33.3. Hence, when availing of subsidy to the tune of 75% (and thereby availing 25% in excess) is not referable to any misrepresentation by the appellants and there is no allegation of breach of any of the conditions of RIPS-2003 by the appellants while availing such benefit, the respondent cannot be held entitled to demand interest at the rate stipulated in Clause 10 of RIPS-2003. However, and at the same time, when the appellant company had obtained undue advantage in monetary terms by availing 25% extra subsidy; and had given undertaking to refund any excessive benefit with interest at the rate of 12% per annum, in our view, the appellant company remains liable to refund the excess amount together with interest at the rate agreed upon, i.e., 12% per annum33.4. In the given set of facts and circumstances of this case, reliance on the decisions of this Court in India Carbon Ltd., J.K. Synthetics Ltd. and Maruti Wire Industries Pvt. Ltd. (supra), dealing the scheme of particular taxing statutes for charging of interest, does not make out a case of total waiver of interest because the fact remains that the appellant company had indeed availed excessive 25% subsidy under the non-statutory scheme and unequivocal undertaking was stated on its behalf to refund the excess amount together with interest @ 12% per annum33.5. It is also noticed that as per the submissions of the appellants, by way of recovery proceedings adopted by the State after the decision of High Court, entire of the principal amount of excess subsidy, i.e., Rs.15,96,37,794/- has already been recovered. In the totality of circumstances and relevant features of this case, in our view, interest of justice shall be served if the respondents are allowed interest at the rate of 12% per annum from the date of availing of excessive (25%) subsidy by the appellants and until recovery/payment.
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extent of 75%, as availed by it pursuant to the Entitlement Certificates dated 29.04.2011 and 24.11.2011 erroneously issued by the State Level Screening Committee. The SLSC was rightly directed to issue the new Entitlement Certificate for subsidy to the limit of 50% of total tax to the said Kotputli Unit of the appellant company; and the company was rightly directed to refund the amount of subsidy availed in excess of 50% of payable and deposited tax. 31.1. However, in the impugned order dated 12.03.2018, the appellant was also directed to make such refund together with interest at the rate of 18% per annum. As observed hereinbefore, even if the decision of State Government to recall 25% availed subsidy is upheld, the point still requiring consideration would be as to whether the State is justified in seeking to recover interest at this rate of 18% per annum? Levy of Interest 32. Coming to the question of levy of interest on the amount sought to be recovered, it has been contended on behalf of the appellants that Clause 10 of RIPS-2003 providing for charging of interest has no application to the present case because grant of 25% subsidy has been revoked not because of any default committed by the appellants but only because of a change of opinion by the respondents after about eight years. The respondents, on the other hand, assert that if benefits have been received under a mistake, the same must be returned with interest so as to avoid unjust enrichment. 33. It remains undeniable that Clause 10 of RIPS-2003, providing Terms and Conditions attached to the benefits availed under the Scheme, envisaged that the breach of any of the condition would make the Capital Investment Subsidy/ exemption amount liable to be recovered as Tax or arrears of land revenue along with interest @ 18% per annum from the date from which the Capital Investment Subsidy was provided. It is not the case of the respondents that the appellant had committed breach of any of the conditions enumerated in Clause 10 of the Scheme and that the excessive amount of subsidy (25%) was being recovered because of any such breach. As noticed, entitlement of the appellant to 50% subsidy has not been questioned; and the only question had been as to whether the appellant company could have availed 75% subsidy? However, disbursement of such 75% subsidy to the appellant was only on the basis of the erroneous decisions taken and Entitlement Certificates dated 29.04.2011 and 24.11.2011 issued by SLSC. 33.1. Even when the said decisions of SLSC are found erroneous and invalid; and the appellant company is found entitled to subsidy only to the extent of 50%, it cannot be said that the excess 25% is relatable to breach of any of the conditions of the Scheme on the part of the appellant nor the appellant could be said to have availed the excessive amount of subsidy by way of any misrepresentation. The basic fault had been on the part of SLSC in taking erroneous decisions and in issuing unauthorised Entitlement Certificates dated 29.04.2011 and 24.11.2011. The respondent State took an abnormally long time in realising the mistake on the part of its functionaries and took corrective measures only after the entire benefit had already been availed of inasmuch as the proceedings for recall were initiated only in the month of July 2017 which led to the impugned order dated 12.03.2018 and then, the Re-revised Entitlement Certificate was issued only on 02.04.2018. 33.2. Apart from the above, it is also noticed that even when the Scheme envisaged interest at the rate of 18% per annum, in Form 2 filed by the appellants, undertaking was stated to repay the amount of subsidy, in case of availing excessive benefits or non- compliance with the provisions of the Scheme, with interest at the rate of 12% per annum (Vide the declaration extracted in paragraph 7.9.2.). Both the parties had proceeded with reference to the said undertaking furnished on behalf of the appellant and the same is required to be treated as a binding term of contract between them. 33.3. Hence, when availing of subsidy to the tune of 75% (and thereby availing 25% in excess) is not referable to any misrepresentation by the appellants and there is no allegation of breach of any of the conditions of RIPS-2003 by the appellants while availing such benefit, the respondent cannot be held entitled to demand interest at the rate stipulated in Clause 10 of RIPS-2003. However, and at the same time, when the appellant company had obtained undue advantage in monetary terms by availing 25% extra subsidy; and had given undertaking to refund any excessive benefit with interest at the rate of 12% per annum, in our view, the appellant company remains liable to refund the excess amount together with interest at the rate agreed upon, i.e., 12% per annum. 33.4. In the given set of facts and circumstances of this case, reliance on the decisions of this Court in India Carbon Ltd., J.K. Synthetics Ltd. and Maruti Wire Industries Pvt. Ltd. (supra), dealing the scheme of particular taxing statutes for charging of interest, does not make out a case of total waiver of interest because the fact remains that the appellant company had indeed availed excessive 25% subsidy under the non-statutory scheme and unequivocal undertaking was stated on its behalf to refund the excess amount together with interest @ 12% per annum. 33.5. It is also noticed that as per the submissions of the appellants, by way of recovery proceedings adopted by the State after the decision of High Court, entire of the principal amount of excess subsidy, i.e., Rs.15,96,37,794/- has already been recovered. In the totality of circumstances and relevant features of this case, in our view, interest of justice shall be served if the respondents are allowed interest at the rate of 12% per annum from the date of availing of excessive (25%) subsidy by the appellants and until recovery/payment. CONCLUSION
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benefit of appellant. The principles of promissory estopple are equally inapplicable and the State Government has rightly exercised the powers of revision under Clause 13 of RIPS-2003 to interfere with the erroneous decisions of SLSC whereby the appellant was allowed 25% extra subsidy and which was, obviously, prejudicial to the interest of revenue; and mere availing of the benefits by the appellant under the erroneous decisions of SLSC is of no effect, particularly when the State Government has exercised the powers of revision within the time stipulated in Clause 13 of RIPS-200331. In view of the above, we have no hesitation in affirming the order of the High Court dated 11.01.2019 and in turn, approving the order of revision dated 12.03.2018 insofar the Additional Chief Secretary held that the Kotputli Cement Works Unit of the appellant company was entitled to Capital Investment Subsidy only to the extent of 50% of the payable and deposited tax and not to the extent of 75%, as availed by it pursuant to the Entitlement Certificates dated 29.04.2011 and 24.11.2011 erroneously issued by the State Level Screening Committee. The SLSC was rightly directed to issue the new Entitlement Certificate for subsidy to the limit of 50% of total tax to the said Kotputli Unit of the appellant company; and the company was rightly directed to refund the amount of subsidy availed in excess of 50% of payable and deposited tax31.1. However, in the impugned order dated 12.03.2018, the appellant was also directed to make such refund together with interest at the rate of 18% per annum.33. It remains undeniable that Clause 10 of RIPS-2003, providing Terms and Conditions attached to the benefits availed under the Scheme, envisaged that the breach of any of the condition would make the Capital Investment Subsidy/ exemption amount liable to be recovered as Tax or arrears of land revenue along with interest @ 18% per annum from the date from which the Capital Investment Subsidy was provided. It is not the case of the respondents that the appellant had committed breach of any of the conditions enumerated in Clause 10 of the Scheme and that the excessive amount of subsidy (25%) was being recovered because of any such breach.As noticed, entitlement of the appellant to 50% subsidy has not been questioned; and the only question had been as to whether the appellant company could have availed 75% subsidy?However, disbursement of such 75% subsidy to the appellant was only on the basis of the erroneous decisions taken and Entitlement Certificates dated 29.04.2011 and 24.11.2011 issued by SLSC.33.1. Even when the said decisions of SLSC are found erroneous and invalid; and the appellant company is found entitled to subsidy only to the extent of 50%, it cannot be said that the excess 25% is relatable to breach of any of the conditions of the Scheme on the part of the appellant nor the appellant could be said to have availed the excessive amount of subsidy by way of any misrepresentation. The basic fault had been on the part of SLSC in taking erroneous decisions and in issuing unauthorised Entitlement Certificates dated 29.04.2011 and 24.11.2011. The respondent State took an abnormally long time in realising the mistake on the part of its functionaries and took corrective measures only after the entire benefit had already been availed of inasmuch as the proceedings for recall were initiated only in the month of July 2017 which led to the impugned order dated 12.03.2018 and then, the Re-revised Entitlement Certificate was issued only on 02.04.201833.2. Apart from the above, it is also noticed that even when the Scheme envisaged interest at the rate of 18% per annum, in Form 2 filed by the appellants, undertaking was stated to repay the amount of subsidy, in case of availing excessive benefits or non- compliance with the provisions of the Scheme, with interest at the rate of 12% per annum (Vide the declaration extracted in paragraph 7.9.2.). Both the parties had proceeded with reference to the said undertaking furnished on behalf of the appellant and the same is required to be treated as a binding term of contract between them33.3. Hence, when availing of subsidy to the tune of 75% (and thereby availing 25% in excess) is not referable to any misrepresentation by the appellants and there is no allegation of breach of any of the conditions of RIPS-2003 by the appellants while availing such benefit, the respondent cannot be held entitled to demand interest at the rate stipulated in Clause 10 of RIPS-2003. However, and at the same time, when the appellant company had obtained undue advantage in monetary terms by availing 25% extra subsidy; and had given undertaking to refund any excessive benefit with interest at the rate of 12% per annum, in our view, the appellant company remains liable to refund the excess amount together with interest at the rate agreed upon, i.e., 12% per annum33.4. In the given set of facts and circumstances of this case, reliance on the decisions of this Court in India Carbon Ltd., J.K. Synthetics Ltd. and Maruti Wire Industries Pvt. Ltd. (supra), dealing the scheme of particular taxing statutes for charging of interest, does not make out a case of total waiver of interest because the fact remains that the appellant company had indeed availed excessive 25% subsidy under the non-statutory scheme and unequivocal undertaking was stated on its behalf to refund the excess amount together with interest @ 12% per annum33.5. It is also noticed that as per the submissions of the appellants, by way of recovery proceedings adopted by the State after the decision of High Court, entire of the principal amount of excess subsidy, i.e., Rs.15,96,37,794/- has already been recovered. In the totality of circumstances and relevant features of this case, in our view, interest of justice shall be served if the respondents are allowed interest at the rate of 12% per annum from the date of availing of excessive (25%) subsidy by the appellants and until recovery/payment.
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Food Corporation Of India Vs. M/S. Thakur Shipping Co. Ltd. & Ors
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should not be referred in accordance with the arbitration agreement and that the applicant was. at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."The observation of Das J. in Subal Chandra Bhurs case, AIR 1943 Cal 484 on which the High Court relied, is preceded by the followings sentence: "Further, the readiness and willingness required by Section 34 of the Act has to exist at the commencement of the legal proceedings and has to continue up to the date of the application for stay". In Anderson Wright Ltd. v. Moran and Co., (l955) 1 SCR 862 = (AIR 1955 SC 53 ) this Court enumerating the conditions that should be fulfilled before a stay may be granted under Section 34 notes as one of the conditions that the-applicant for stay "should satisfy the court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration .It is thus quite clear on the authorities and from the terms of Section 34 that the readiness and willingness must exist not, only when an application for stay is made but also at the commencement of the legal proceedings. From the conduct of the first defendant in either of these two suits the trial Court found that they were not ready and willing to go to arbitration at the time when the suits were instituted. This is a finding of fact and we are afraid there was no valid ground in either case for interference with this finding.From the letters written on behalf of the Corporation to the agents of the first defendant in the suit giving rise to Civil Appeal 1519 of 1974 urging them to take steps for referring the dispute to arbitration and the evasive replies sent to these letters, the trial Court came to the conclusion that the first defendant was not ready and willing to go to arbitration at the time when the suit was instituted.We do not think this was an arbitrary or perverse conclusion as the High Court characterized it. In our opinion the High Court went wrong in disregarding relevant and significant material, namely, the correspondence that passed between the parties, as innocuous" and erred in disturbing the finding of fact for no valid reason.7. As regards the suit which gives rise to Civil Appeal 1518 of 1974, the trial Court repelled the contention that as the Corporations proposal to refer the dispute to the sole arbitration of the Director-General Shipping. Bombay was different from what clause 42 of the Charter-Party provided, the defendant was justified in not replying to the telegrams or doing anything for the proper conduct of the arbitration. The argument that the trial Court rejected found favour with the High Court. That the Corporations proposal was a deviation from clause 42 of the Charter-Party was hardly a valid excuse for the first defendant to remain silent and inactive. If the first defendant were ready and willing to go to arbitration, one would have expected them, as the trial Court observed, to reply to the telegrams saying that they were not agreeable to any departure from the terms of clause 42 and would insist on compliance with that clause. But they did not reply to the telegrams or do anything for reference of the dispute to arbitration as provided in clause 42.Silence and inaction on their part may in these circumstances very well justify the inference that they were not ready or willing to go to arbitration. The finding of the High Court that the trial Court had exercised its discretion not judicially cannot therefore be supported.And in this case really no question arises as to exercise of discretion. Granting stay under Section 34 is of course discretionary as the section indicates but the-occasion for the exercise of discretion does not arise unless all the conditions stated in the section are fulfilled. In this case the trial Court found as a fact that the first defendant was not ready and willing to go to arbitration when the suit was instituted and we have held that the finding is not perverse or arbitrary, one of the requirements of the section not having been fulfilled, Section 34 could not be invoked in this case.8. Mr. Desai for the respondent relied on certain observations of this Court in Michael Golodetz v. Serajuddin and Co., (l964) 1 SCR 19 = (AIR 1963 SC 1044 ) in support of the proposition that the court should not allow a party to an arbitration agreement to proceed with the suit in "breach of the solemn obligation to seek resort to the tribunal selected by him". It is however made clear in that decision that these observations are subject to the terms of Section 34, one of which is that the other party to the agreement must remain "ready and willing to do all things necessary for the proper conduct of the arbitration". The legal position is explained in that decision, as follows;"The Court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribune1 contemplated by them at the time of the contract. That is not because the Court regards itself bound to abdicate its jurisdiction in respect of disputes within its cognizance, it merely seeks to promote the sanctity of contracts, and for that purpose stays the suit, The jurisdiction of the Court to try the suit remains undisputed, but the discretion of the court is on grounds of equity interposed.......... it is for the court, having regard to all the circumstances, to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay. Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is essentially a question of fact."
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1[ds]It is thus quite clear on the authorities and from the terms of Section 34 that the readiness and willingness must exist not, only when an application for stay is made but also at the commencement of the legal proceedings. From the conduct of the first defendant in either of these two suits the trial Court found that they were not ready and willing to go to arbitration at the time when the suits were instituted. This is a finding of fact and we are afraid there was no valid ground in either case for interference with this finding.From the letters written on behalf of the Corporation to the agents of the first defendant in the suit giving rise to Civil Appeal 1519 of 1974 urging them to take steps for referring the dispute to arbitration and the evasive replies sent to these letters, the trial Court came to the conclusion that the first defendant was not ready and willing to go to arbitration at the time when the suit was instituted.We do not think this was an arbitrary or perverse conclusion as the High Court characterized it. In our opinion the High Court went wrong in disregarding relevant and significant material, namely, the correspondence that passed between the parties, as innocuous" and erred in disturbing the finding of fact for no valid reason.7. As regards the suit which gives rise to Civil Appeal 1518 of 1974, the trial Court repelled the contention that as the Corporations proposal to refer the dispute to the sole arbitration of the Director-General Shipping. Bombay was different from what clause 42 of the Charter-Party provided, the defendant was justified in not replying to the telegrams or doing anything for the proper conduct of the arbitration. The argument that the trial Court rejected found favour with the High Court. That the Corporations proposal was a deviation from clause 42 of the Charter-Party was hardly a valid excuse for the first defendant to remain silent and inactive. If the first defendant were ready and willing to go to arbitration, one would have expected them, as the trial Court observed, to reply to the telegrams saying that they were not agreeable to any departure from the terms of clause 42 and would insist on compliance with that clause. But they did not reply to the telegrams or do anything for reference of the dispute to arbitration as provided in clause 42.Silence and inaction on their part may in these circumstances very well justify the inference that they were not ready or willing to go to arbitration. The finding of the High Court that the trial Court had exercised its discretion not judicially cannot therefore be supported.And in this case really no question arises as to exercise of discretion. Granting stay under Section 34 is of course discretionary as the section indicates but the-occasion for the exercise of discretion does not arise unless all the conditions stated in the section are fulfilled. In this case the trial Court found as a fact that the first defendant was not ready and willing to go to arbitration when the suit was instituted and we have held that the finding is not perverse or arbitrary, one of the requirements of the section not having been fulfilled, Section 34 could not be invoked in this case.
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should not be referred in accordance with the arbitration agreement and that the applicant was. at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."The observation of Das J. in Subal Chandra Bhurs case, AIR 1943 Cal 484 on which the High Court relied, is preceded by the followings sentence: "Further, the readiness and willingness required by Section 34 of the Act has to exist at the commencement of the legal proceedings and has to continue up to the date of the application for stay". In Anderson Wright Ltd. v. Moran and Co., (l955) 1 SCR 862 = (AIR 1955 SC 53 ) this Court enumerating the conditions that should be fulfilled before a stay may be granted under Section 34 notes as one of the conditions that the-applicant for stay "should satisfy the court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration .It is thus quite clear on the authorities and from the terms of Section 34 that the readiness and willingness must exist not, only when an application for stay is made but also at the commencement of the legal proceedings. From the conduct of the first defendant in either of these two suits the trial Court found that they were not ready and willing to go to arbitration at the time when the suits were instituted. This is a finding of fact and we are afraid there was no valid ground in either case for interference with this finding.From the letters written on behalf of the Corporation to the agents of the first defendant in the suit giving rise to Civil Appeal 1519 of 1974 urging them to take steps for referring the dispute to arbitration and the evasive replies sent to these letters, the trial Court came to the conclusion that the first defendant was not ready and willing to go to arbitration at the time when the suit was instituted.We do not think this was an arbitrary or perverse conclusion as the High Court characterized it. In our opinion the High Court went wrong in disregarding relevant and significant material, namely, the correspondence that passed between the parties, as innocuous" and erred in disturbing the finding of fact for no valid reason.7. As regards the suit which gives rise to Civil Appeal 1518 of 1974, the trial Court repelled the contention that as the Corporations proposal to refer the dispute to the sole arbitration of the Director-General Shipping. Bombay was different from what clause 42 of the Charter-Party provided, the defendant was justified in not replying to the telegrams or doing anything for the proper conduct of the arbitration. The argument that the trial Court rejected found favour with the High Court. That the Corporations proposal was a deviation from clause 42 of the Charter-Party was hardly a valid excuse for the first defendant to remain silent and inactive. If the first defendant were ready and willing to go to arbitration, one would have expected them, as the trial Court observed, to reply to the telegrams saying that they were not agreeable to any departure from the terms of clause 42 and would insist on compliance with that clause. But they did not reply to the telegrams or do anything for reference of the dispute to arbitration as provided in clause 42.Silence and inaction on their part may in these circumstances very well justify the inference that they were not ready or willing to go to arbitration. The finding of the High Court that the trial Court had exercised its discretion not judicially cannot therefore be supported.And in this case really no question arises as to exercise of discretion. Granting stay under Section 34 is of course discretionary as the section indicates but the-occasion for the exercise of discretion does not arise unless all the conditions stated in the section are fulfilled. In this case the trial Court found as a fact that the first defendant was not ready and willing to go to arbitration when the suit was instituted and we have held that the finding is not perverse or arbitrary, one of the requirements of the section not having been fulfilled, Section 34 could not be invoked in this case.8. Mr. Desai for the respondent relied on certain observations of this Court in Michael Golodetz v. Serajuddin and Co., (l964) 1 SCR 19 = (AIR 1963 SC 1044 ) in support of the proposition that the court should not allow a party to an arbitration agreement to proceed with the suit in "breach of the solemn obligation to seek resort to the tribunal selected by him". It is however made clear in that decision that these observations are subject to the terms of Section 34, one of which is that the other party to the agreement must remain "ready and willing to do all things necessary for the proper conduct of the arbitration". The legal position is explained in that decision, as follows;"The Court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribune1 contemplated by them at the time of the contract. That is not because the Court regards itself bound to abdicate its jurisdiction in respect of disputes within its cognizance, it merely seeks to promote the sanctity of contracts, and for that purpose stays the suit, The jurisdiction of the Court to try the suit remains undisputed, but the discretion of the court is on grounds of equity interposed.......... it is for the court, having regard to all the circumstances, to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay. Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is essentially a question of fact."
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It is thus quite clear on the authorities and from the terms of Section 34 that the readiness and willingness must exist not, only when an application for stay is made but also at the commencement of the legal proceedings. From the conduct of the first defendant in either of these two suits the trial Court found that they were not ready and willing to go to arbitration at the time when the suits were instituted. This is a finding of fact and we are afraid there was no valid ground in either case for interference with this finding.From the letters written on behalf of the Corporation to the agents of the first defendant in the suit giving rise to Civil Appeal 1519 of 1974 urging them to take steps for referring the dispute to arbitration and the evasive replies sent to these letters, the trial Court came to the conclusion that the first defendant was not ready and willing to go to arbitration at the time when the suit was instituted.We do not think this was an arbitrary or perverse conclusion as the High Court characterized it. In our opinion the High Court went wrong in disregarding relevant and significant material, namely, the correspondence that passed between the parties, as innocuous" and erred in disturbing the finding of fact for no valid reason.7. As regards the suit which gives rise to Civil Appeal 1518 of 1974, the trial Court repelled the contention that as the Corporations proposal to refer the dispute to the sole arbitration of the Director-General Shipping. Bombay was different from what clause 42 of the Charter-Party provided, the defendant was justified in not replying to the telegrams or doing anything for the proper conduct of the arbitration. The argument that the trial Court rejected found favour with the High Court. That the Corporations proposal was a deviation from clause 42 of the Charter-Party was hardly a valid excuse for the first defendant to remain silent and inactive. If the first defendant were ready and willing to go to arbitration, one would have expected them, as the trial Court observed, to reply to the telegrams saying that they were not agreeable to any departure from the terms of clause 42 and would insist on compliance with that clause. But they did not reply to the telegrams or do anything for reference of the dispute to arbitration as provided in clause 42.Silence and inaction on their part may in these circumstances very well justify the inference that they were not ready or willing to go to arbitration. The finding of the High Court that the trial Court had exercised its discretion not judicially cannot therefore be supported.And in this case really no question arises as to exercise of discretion. Granting stay under Section 34 is of course discretionary as the section indicates but the-occasion for the exercise of discretion does not arise unless all the conditions stated in the section are fulfilled. In this case the trial Court found as a fact that the first defendant was not ready and willing to go to arbitration when the suit was instituted and we have held that the finding is not perverse or arbitrary, one of the requirements of the section not having been fulfilled, Section 34 could not be invoked in this case.
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Jiyajeerao Cotton Mills Limited And Another Vs. Madhya Pradesh Electricity Board And Others
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had no authority to make the demand in excess of the agreed rate under the agreement. Repelling the contention, the Court observed in paragraph 4 of the judgment that the agreement itself did not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of its power under Section 22B of the 1910 Act; nor did the agreement stipulate the rate at which such supply should be charged if notwithstanding the ban against the supply a consumer drew electricity in excess of the permissible quantity. In the circumstances, the Board was justified in invoking the power under Section 49(3) of the 1948 Act which authorised it to supply electricity by charging different tariff having regard to certain conditions and any other relevant factors. Section 49(3) was interpreted to be wide enough to cover a situation where electricity in excess of the quantum is drawn in disregard of the ban imposed under Section 22B of the 1910 Act. We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under Section 49(1) of the 1948 Act read with the agreement or under Section 49(3) or under both the provisions the respondent Board is fully authorised to levy and to make a demand at a higher rate than the usual tariff. It is also clear that it is not essential for the Board to make regulations indicating the basis for such levy before making the demand. The appellant has not been able to successfully show before us that the power by the Board has to be exercised in a particular manner and by adopting a particular mode. If it is assumed that a particular formality has to be completed before a demand can be legitimately raised, the appellant cannot be allowed to claim now that the same is lacking in the present case in the absence of a proper pleading in the original writ petition before the High Court. If the point had been raised in time, the respondent Board could have placed relevant materials on the issue. If at the end of the hearing of the case in the High Court the point was mentioned in the appellants final reply and included in the last installment of its written argument, it cannot cure the defect in the pleading specially when the judgment of the High Court dismissing the writ application does not deal with the point. In that view it is not necessary to test the correctness of the argument of Mr. Kacker that the appellants entitlement to receive the quantum of electricity from the Board at the normal tariff can be determined only by a combined reading of the two Orders. We do not, therefore, consider it necessary to decide as to what would have been the precisely correct answer if the point had been properly raised before the High Court at the appropriate stage. 36. We do not find any merit in any of the points urged on behalf of the appellant. We were informed by the learned Counsel for the parties that the appellant does not accept the correctness of the calculations in the letter P series and the question is being examined by the High Court in a pending case. The appellant also asserts that even during the period commencing from November 1979 the Company had pleaded for emergency supply. The High Court has in the present case directed the prayer for emergency supply to be considered on merits. Since these questions are not involved in the present appeals, arguments relating to these points have not been addressed before us. We, in the circumstances, make it clear that any observation made in the present case shall not be treated to have decided those points which are the subject matter of a pending case in the High Court. 37. It was also pointed out at the Bar that several interim orders were issued by this Court during the pendency of the present appeals and final direction should be given in regard to them. While granting special leave this Court by its order dated 5.11.1982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs. 50,00,000 within a fortnight and another sum of Rs. 1,50,00,000 within six months with interest from 1.1.1983 at the rate of 12% per annum until payment. The future payment of the electricity bills was ordered to be made within four weeks from the service of the bills. The Court also said that the applications made by the appellants for consideration of emergency supply of the electricity should be expeditiously disposed of by the Board on merit, and all payments by the appellants will be subject to adjustment in the light of the decision on the emergency applications. By the order dated 24.11.1982 the time for payment of Rs. 50,00,000 was extended to 6.12.1982. With respect to the payment of Rs. 1,50,00,000 the Court by its order dated 6.5.1983 permitted the amount to be deposited in two equal installments. The Court also said that if it was ultimately found that the appellant had paid any amount in excess of the total liability, the Board shall repay such excess amount with interest at the rate of 12% per annum. By a subsequent order dated 23.4.1984 the appellant was required to pay a sum of Rs. 1,28,00,000 to the Board by the 10th of May, 1984 and to keep the bank guarantee alive till the final disposal of these appeals as condition for continuance of the interim order. During the hearing of the appeal a grievance was made on behalf of the respondent Board that the bank guarantee had not been effectively renewed and the learned Counsel for the appellant undertook on behalf of the Company to correct the defect. Subsequently it was stated at the Bar that proper bank guarantee had been furnished in accordance with the Courts direction.
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0[ds]10. While Regulation Order was meant for general application to all consumers, the Generation Order was confined only to such consumers who were having captive power source. It is also manifest that such a consumer was under a duty to generate additional electricity only when the maximum technically feasible capacity of the generating set or sets of the consumer was assessed under Proviso (i) to Clause 3 and was followed by a direction to that effect.The Company, by this letter requested the Board to charge at the normal tariff for the additional electricity consumed by the Company as emergency supply as per Proviso (iii) to Clause 3 of the Generation OrderThe reply of the Board is that the Committee no doubt inspected the generating sets and discussed the matter with the consumers, and thus collected relevant data for the purpose of assessment of the capacity, but the Divisional Engineer while relying on the material collected, did not mechanically accept the conclusion of the Committee. He (the Divisional Engineer) applied his mind before issuing the Order Annexure H. Mr. Kacker further said that the matter did not rest there. After taking into account the objection raised by the Company the Divisional Engineer took up the matter afresh and applied his mind independently. Ultimately he came to a similar conclusion as is evident by the second direction as contained in Annexure O dated 10.10.1975.The argument of Mr. Kacker appears to be well founded.At this stage, however, we should like to point out that the appellant did not challenge the assessment on the ground that it was not made by the authority mentioned in the Generation Order; and in the last paragraph the request made was for review.Instead of advancing the appellants case, the letter shows that the assessment and the direction mentioned in Annexure H were accepted by the Company and steps were taken to implement the same.On behalf of the appellant it was said that the Company had no knowledge of this letter in 1975.letter mentions an inspection of the Companys Power House by the Divisional Engineer and the materials supplied by the Company to him. The details with respect to the boilers of the Company and the other figures mentioned therein, correctness whereof is not challenged by the appellant, fully establish that the inspection was made in presence of and the figures were collected with the assistance of the officers of the appellant Company and the conclusion regarding the assessment was reached after taking into account the case of the Company. It has been argued on behalf of the Board before us that the method adopted by the Divisional Engineer as disclosed by this letter (document No. 3) was different from that followed by the Committee, as a result of which there was some difference in their final result. On the basis of his independent assessment the Divisional Engineer issued another instruction as contained in Annexure O dated 10.10.1975 (at page 136 of the Paper Book Vol. II), mentioned earlier. This second direction which was effective from 31.10.1975 naturally superseded the earlier one under Annexure H. The Boards impugned demand does not relate to any period before 31.10.1975 and, therefore, it is immaterial if the direction in Annexure H is completely ignored on account of its supersession by Annexure O or on any other ground and it be assumed that in absence of a feasible assessment of the capacity, the Generation Order was not applicable to the appellant Company before 31.10.1975.On behalf of the appellant it was said that the Company had no knowledge of this letter in 1975.We do not think that this is a correct stand. Theletter mentions an inspection of the Companys Power House by the Divisional Engineer and the materials supplied by the Company to him. The details with respect to the boilers of the Company and the other figures mentioned therein, correctness whereof is not challenged by the appellant, fully establish that the inspection was made in presence of and the figures were collected with the assistance of the officers of the appellant Company and the conclusion regarding the assessment was reached after taking into account the case of the Company. It has been argued on behalf of the Board before us that the method adopted by the Divisional Engineer as disclosed by this letter (document No. 3) was different from that followed by the Committee, as a result of which there was some difference in their final result. On the basis of his independent assessment the Divisional Engineer issued another instruction as contained in Annexure O dated 10.10.1975 (at page 136 of the Paper Book Vol. II), mentioned earlier. This second direction which was effective from 31.10.1975 naturally superseded the earlier one under Annexure H. The Boards impugned demand does not relate to any period before 31.10.1975 and, therefore, it is immaterial if the direction in Annexure H is completely ignored on account of its supersession by Annexure O or on any other ground and it be assumed that in absence of a feasible assessment of the capacity, the Generation Order was not applicable to the appellant Company before 31.10.1975.We think that in view of the revised order of the Divisional Engineer passed on 10.10.1975, vide Annexure O, earlier correspondence is not material for the purpose for which the appellant is trying to use them.So far as the question as to whether an assessment of the feasible capacity of the generating sets of the appellant Company was made by the Divisional Engineer as required by the Generation Order is concerned, we have no hesitation in deciding the issue in favour of the respondent.think that in view of the revised order of the Divisional Engineer passed on 10.10.1975, vide Annexure O, earlier correspondence is not material for the purpose for which the appellant is trying to use them.In view of our finding in the preceding paragraph, the argument has to be rejected. Besides, it is not correct to assume that an appeal against the assessment was provided by Clause 6 of the Generation OrderThe above is obviously an arbitration clause in case of a dispute and since the maintainability of the appellants writ application before the High Court was decided in its favour, it cannot make a grievance on this score. Besides, if the appellant Company had a grievance against the assessments which were made in 1975, it ought to have challenged the same then and not to have waited for a number of years before approaching the High Court.18. It is significant to note that at no point of time either in 1975 or later the appellant chose to get a scientific assessment of its generating sets made by an expert, nor even after filing the present writ petition in the High Court did it file any opinion of a person having scientific expert knowledge showing the impugned assessments to be erroneous or undependable. It is also important to appreciate that the appellant has not either earlier or now made any complaint of mala fides or bias against any of the members of the Committee or the Divisional Engineer or for that matter against any officer of the respondent Board or the State. On the other hand, the Officers of the Board appear to have taken a very sympathetic attitude towards the appellant for more than four years and allowed it the benefit of additional energy under Proviso (iii) to Clause 3 of the Generation Order very generously. It was only when the Board discovered in 1980 that the appellant had stopped even informing the Board and obtaining its prior approval as envisaged by the Generation Order before consuming extra energy that the matter was closely examined by the Boards Officers. Mr. Kacker is also right in relying upon the conduct of the parties for about four or five years after the assessment was made as furnishing important circumstance relevant to the issue. We may, therefore, examine a number of letters in this regard some of which have already been mentioned earlier.The learned Counsel for the parties before us explained the scientific implications of the test by parallel running, but we do not consider it necessary to go in its technical details. The Board requested the Companys consent for such a test, to be communicated positively within a week. By its reply dated 25.8.1975 Annexure L (page 133, Vol. II) the Company rejected the suggestion on two grounds, namely, that it was not having protection system like power relay etc. and in case of tripping of Boards supply we would be doing the paralleling of the sets, which was not safe. In reply thereto the Board satisfactorily met the objections by its next letter Annexure M dated 25.10.1975 (page 134, Vol. II). It was pointed out that the parallel running test will be undertaken only for a short period after which the captive sets would be separated from the Boards system; and a disturbance free period could be chosen for the same. Besides, the objections to the suggested test have to be rejected as frivolous in view of the stand of the Company itself as indicated in the letter Annexure N (page 135, Vol. II) dated 6.11.1975, stating that it had no objection into the suggested trial, which the appellant claims to have sent to the Board which fact is however denied. In the meantime the second assessment order under Annexure O had already been communicated. It was, therefore, open to the appellant either to accept and act upon this fresh assessment or to go in for a further check as mentioned by the Board. The appellant did not pursue the matter at all and observed silence on the suggestion for the parallel running test.The argument of Mr. Kacker appears to be well founded.It is significant to note that the appellant had not accepted the offer as wrongly claimed by it, on the basis of the letter Annexure N, but at the same time the said letter does indicate that the suggested parallel running test was feasible and there was no justification to reject it on the flimsy grounds mentioned by the appellant on 25.8.1975 (Annexure L). The conclusion is irresistible that the appellant Company backed out without adequate reason from the realistic test proposed by the Board to check the correctness of the assessment.The letter is not only conspicuous by the absence of the objections which were taken later in 1980 before filing of this writ case, but it positively indicates that the Company accepted the assessment as correct, and as expected, it was actually able to generate the required additional electricity after the addition of the sixth boiler and was pleading for normal tariff for the additional electricity already consumed earlier. This position is re-inforced by several further letters of the Company, but before we go to them we would like to point out another very important fact emerging out of this very letter. At page 7 of Vol. II of the paper book the letter dealt with another aspect highly relevant to the present dispute. Another Limited Company known by the name of Gwalior Rayons is having a factory near the appellant Companys factory and the appellant was supplying electric energy to the other factory illegally and without the permission of the BoardA fervent appeal in the interest of the other factory belonging to a different Limited Company altogether was made in the above terms. It has to be remembered that in view of the provisions of Section 28(1) of the 1910 Act, the Company was prohibited from supplying any energy to the other factory. This aspect was stressed in term 2(b) of the agreement between the appellant and the Board as per Annexure A (page 62 of Vol. II). It was not the appellants case then or before us now that it had obtained the previous sanction of the State Government for so doing. Under Clause 4 of the Generation Order, which reads as follows, jurisdiction was vested in the Divisional Engineer of the Board to direct a consumer having captive source of power to supply electricity to the Board or to any other consumer only if the consumer was having surplus generation4. If the consumer having own generating set(s) can have, as a result of additional generation reasonable in the opinion of the Divisional Engineer of the Board having jurisdiction, energy, surplus to his requirement, the Divisional Engineer may direct him to supply the surplus to the Board or to another consumer nearby who has been taking supply from the Board and who is willing to take the supply from the consumer having generating sets:Provided that(i) the contract demand of and the supply to the other consumer from the Board shall be reduced correspondingly, whether or not the other consumer avails of the supply from the consumer having the set,(ii) the other consumer shall pay to the consumer having generating set(s) for such supply as if it is supplied from the Board,(iii) if the payment receivable by the consumer having the set under the last preceding clause is less than his incremental cost of additional generation, the Board shall make good the difference to the consumer having the set(s) and(iv) the consumer having the set(s) will not be required to incur any additional expenditure for laying lines for transmitting energy to the other consumer; such lines if required being laid by and at the cost of the Board.How could, in these circumstances, the appellant pass on to a third party some of the electricity meant for it, there is no explanation on the records.Mr. Kacker rightly pointed out that no such suggestion was ever made on behalf of the appellant in any of its letters. On the other hand, the reason pleaded in the letter quoted above was to save the other Company from incurring loss due to costly damage to the cloth. In his final reply Mr. Gupta said that the appellant was passing on some electricity to the Gwalior Rayons only after reducing its humidity or waste plant load as stated in the letter. The explanation is too vague and it cannot be assumed that the appellant was making the contribution to its sister concern by creating artificial shortage of supply to its mills. The appellants conduct cannot be explained except on the premise that it was able to generate adequate additional electricity for its purpose and was taking for granted the sympathetic attitude of the Officers of the Board in liberally allowing it additional emergency supply at normal tariff.22. Another letter which calls for a detailed consideration was sent by the appellant on 30.5.1979 and is included at pages 16 to 20 of Vol. IV. A fresh request for emergency supply under Proviso (iii) to Clause 3 of the Generation Order was made in this letter on the ground that the sixth boiler was out for annual overhaul. It was stated in the opening sentence that this boiler was giving some trouble earlier but later stabilised. The Company was, therefore, self-sufficient without drawing any power from the Board so far. The letter proceeded to state that the sixth boiler would be going for annual overhaul and after that the annual overhauling of the other boilers would be carried out; and therefore, 1875 K.W. should be allowed to be drawn for the period mentioned therein.It was further requested that during the period of breakdown emergency power as detailed should be supplied and, we would request you that for the power availed by us from the Board for above purpose, say up to a total of 7 days in a month, we may be charged at the same tariff.Insisting again that it should be allowed to supply electricity to Gwalior Rayons, described as its sister concern,This letter dated 30.5.1977 confirms the conclusions derived from the earlier letter dated 14.2.1977 and clarifies that the first letter was not sent by some mistake on the part of the appellant Company. Request for emergency supply was, however, made from time to time in 1978 and for some time in 1979, which was allowed by the Board. The other letters including those dated 30.5.1978, 29.6.1978, 7.7.1978 and 9.9.1978 are all consistent with a correctly made binding assessment of the feasible additional capacity from the generating sets belonging to the Company.24. The system of supply of power to the consumers is such that they can go on drawing electricity beyond their entitlement without any further positive step by the officers of the Board. The Board is, however, in a position to, by keeping a certain switch known as Air Break Switch open, put a restriction on the consumer from drawing excess energy.A letter dated 4.6.1975 (document No. 1, at page 300 of Vol. II) sent by the appellant has been strongly relied on by Mr. Kacker for showing that Air Break Switch was permitted to remain closed with a view to assure uninterrupted supply to the appellant at its request. The result was that the appellant was in a position to draw excess electricity without reference to the officers of the Board. That letter indicates that the Board was contemplating to keep the switch open and the Company by this letter made a request not to do so. The appellant Company was fully conscious of the fact that it was consuming electricity beyond its entitlement under the two Orders, by claiming the benefit of the provisions dealing with emergency supply, and was also alive to the fact that this had to be done only with the prior approval of the Board.The learned Counsel for the Board was right in saying that on account of this request by the appellant the line was kept open for it unhindered. This did not mean that the Company was entitled to misuse the privilege, draw extra energy without prior permission and thereafter refuse to pay higher charges when demanded. It has been conclusively established by a large number of letters on the records of the case that for several years the Company was particular in obtaining the permission of the Board for drawing electricity in excess of what it was entitled to, by the agreement as modified by the Regulation Order and Generation Order, but later, it not only stopped seeking the advance sanction in this regard, it did not even care to inform the Board of the excess drawal. The Branch of the respondent Board at Gwalior sent the bills on the basis of the normal tariff, as the question of grant of additional emergency supply was being dealt with by the Head Office at Jabalpur. The Gwalior Office was not at all dealing with the matter relating to the excess emergency supply which aspect was being exclusively dealt with at Jabalpur, and as soon as the relevant facts came to the knowledge of the Head Office of the Board it took up the matter with the appellant Company. The entire conduct of the parties furnishes strong circumstantial evidence in support of the Boards case.We do not find any merit in the submission. The letters marked as P series did not deal with the entitlement of the appellant Company as a result of both the Orders-Regulation and Generation. The Regulation Order was of universal application to all the consumers while the Generation Order applied to only such of them who had their own generating sets. Under the Regulation Order the contract demand was reduced by a certain percentage and provided for payment of charges at penal rate in case of excess consumption. The rate of cut and the penal rate for additional consumption did not remain constant, and were revised from time to time. It appears that as and when the revision in the rates took place the consumers were informed as to the effect of the Regulation Order as it stood after modification. Mr. kacker was right in saying that since the Regulation Order was applicable to all the consumers and letters similar to those marked as Annexure P series were being addressed to all of them, there could not be any objection in the Board sending similar letters to the appellant and others having their private generating sets dealing with the effect of the Regulation Order alone, without taking into account the Generation Order. A perusal of these letters fully supports the respondents stand that they were being issued with reference to the Regulation Order alone. Further, a close examination of the Generation Order would show that the maximum permissible limit available under the Regulation Order had not ceased to be relevant even after the application of the Generation Order. The entitlement of the appellant due to emergency outage under Proviso (iii) to Clause 3 of the Generation Order was limited to the original contract demand as reduced by the Regulation Order. It was, therefore, important for the appellant to keep in mind that at no point of time it could be entitled to ask for beyond this limit as emergency supply on any ground whatsoever. As this limit fluctuated from time to time on the change in the percentage of reduction in the Regulation Order, the appellant was rightly reminded of the latest position in this regard. The learned Counsel for the respondents was also right in saying that these letters could not have misled the appellant in any manner. The numerous letters discussed earlier clearly indicate that the appellant correctly appreciated its position and repeatedly made requests for emergency supply under the Generation Order on the assumption that its entitlement had been rendered to zero.The appellants letter dated 30.5.1977 (at page 16 of Vol. IV) referred to earlier, fully demonstrates that the plea raised by the appellant is devoid of any merit. A portion of the said letter (not dealt with earlier) is in the following terms:During the period of break down we would request you to agree to the following arrangement:i. Before availing Boards power during the emergency we will intimate the B.E., MPEB, Gwalior as well as S.E.MPEB, Gwalior and send a copy of our letter to the Director (Com), MPEB, Jabalpur.ii(a) In case 6th boiler is out and other boilers are working satisfactorily we may be allowed to draw power upto 1200 KW.(b) In case 6th boiler is on range and one of our M.V. boilers is out we may be allowed to draw power upto 1200 KW.(c) In case 6th boiler is not and one of our M.V. boilers is also out, we may be allowed to draw power upto 1875 KW.If present stand of the appellant be assumed to be correct, there was no occasion for it to claim varying quantities of power in changing circumstances as mentioned above.By this letter the appellant was informed that the contract demand of 3490 KW as per the agreements between the parties was going to be reduced to 1250 KW under the provisions of the Generation Order, and on further reduction under the Regulation Order it would come down to 875 KW only. The appellant was accordingly directed to draw power upto 875 KW with effect from 1.8.1980. The Board further informed the appellant that no additional power will be supplied during the period of overhauling of the private generating sets. This part of Annexure U has been set aside by the High Court on the ground that under Proviso (iii) to Clause 3 of the Generation Order the Board was under a duty to permit the appellant to draw additional electricity on satisfaction of the relevant conditions for emergency supply, which it could not deny. The Board has not challenged this part of the High Courts decision, and the same is not relevant for purposes of the present appeal.The admitted position in regard to different agreements between the parties is that initially the parties entered into a contract with respect to 1500 KW only which was later raised to 2500 KW. The Regulation and Generation Orders came into existence at that stage. In July 1979, a supplementary agreement was executed between the parties for supply of additional 800 KW and in December 1979 the Board further sanctioned 190 KW.On a consideration of the documents and the relevant circumstances we agree with Mr. Kacker. The use of the word re-assessment in the letter quoted above instead of assessment also supports the respondents case. The term re-assessment implies that there had already been an assessment earlier. Even interpreting the letter as suggested by Mr. Gupta, the existence of the earlier assessment by the Divisional Engineer cannot be ignored. If the appellant was not satisfied with it, it should have taken appropriate step for getting the same quashed in 1975 itself and should not have waited for four or five years before approaching the High Court, and in the meantime taking the benefit of the provisions regarding emergency supply on its basis.29. We have heard the learned Counsel at considerable length on this aspect and we think that the question as to what should be considered the correct feasible capacity of the appellants sets is one involving complex technical knowledge and the High Court (or for that matter this Court) was well advised not to have attempted to determine it. We must reiterate the circumstances which appear to be highly relevant, namely, (i) that the Divisional Engineer who has been rightly considered by the Generation Order to have sufficient expert knowledge in this regard reached the conclusion which is under challenge in the present case after personally considering the matter thoroughly along with the Officers of the Company as is apparent by many of the letters; (ii) the figures collected by the members of the Committee are not challenged as incorrect or inaccurate; (iii) it is not suggested that any of the members of the Committee or the Divisional Engineer or for that matter any Officer of the respondent Board or of the State Government had any prejudice or bias against the appellant Company; (iv) the appellant did not get an independent assessment of its generating sets made by any person having expert knowledge; (v) the appellant avoided to get the correctness of the assessment verified by the parallel running test as suggested by the Board; and (vi) the conduct of both the appellant and the respondent Board as emerging from the documents placed by the parties on the records of the case furnish valuable circumstantial evidence in support of the respondents case. The argument of the appellant challenging the assessment as illegal must, therefore, be rejected.our finding that a proper and binding assessment of the capacity of the appellants generating sets was made in 1975 by the Divisional Engineer in pursuance of which the direction in Annexure O was issued and in view of the further fact that on that basis the appellant from time to time asked for and was allowed emergency relief under Proviso (iii) to Clause 3 of the Generation Order, the argument of Mr. Kacker appears to be correct. The appellant has, in our view, failed to establish any right of additional relief from an earlier date.Mr. Kacker appears to be right in his stand that merely because the appellant became liable to the penalty as mentioned in Section 42(e) it cannot on that ground defend an additional demand on account of supply of the extra energy, if otherwise maintainable under the law. Besides, Section 48 puts the matter beyond controversy by expressly stating that the penalty imposed by the aforesaid section shall be in addition to, and not in derogation of, any liability in respect of the payment of compensation which the offender may have incurred.32. While commencing his argument, Mr. Gupta had indicated that one of the points on which the appellant relied upon, related to the validity of Clause 3 of the Generation Order mandatory requiring a consumer to generate maximum feasible electricity from its own generating set. It was suggested that the provisions in the said Clause being in excess of the power under Section 22B, were ultra vires.After completing his argument on the other points he said that he was not pressing this point. Mr. Kacker, therefore, did not address us on this aspect. We may not in these circumstances detain ourselves on this question except mentioning the decisions in Adoni Cotton Mills v. A.P. State Electricity Board [1976] 4 SCC 68 ; State of U.P. v. Hindustan Aluminium Corporation [1979] 3 SCC 229 ; and New Central Jute Mills v. U.P. State Electricity Board [1986] Supp. SCC 581 , showing in unambiguous terms that the power is there. Section 22B permits the State Government to issue an appropriate order for regulating the supply, distribution and consumption of electricity. The expression regulate occurs in other statutes also, as for example, the Essential Commodities Act, 1955, and it has been found difficult to give the word a precise definition. It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and as has been repeatedly observed, the Court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied. The necessity for issuing the two Orders arose out of the scarcity of electricity available to the Board for supplying to its customers. The situation did not leave any option to the Board but to make limited supply of electricity to its consumers, and it must be held to have, in the circumstances the right to stagger or curtail the supply. The Orders were issued in this background and to make the direction mentioned therein effective it was considered essential to impose sanctions which could take any reasonable form; either disconnection in case of gross violation or the lesser sanction of enhanced tariff. By the Order issued under Section 22B and quoted in paragraph 7 of the judgment in Adoni Cotton Mills case (supra) the State Government directed a reduction in supply of electricity to the extent of 75% of the previous average monthly demand and provided for payment of the charges for excess consumption at double the tariff rates. The Electricity Board thereafter proceeded to impose further restrictions. Aggrieved by these measures the Adoni Cotton Mills, an aggrieved consumer approached the Court, but its challenge was repelled. On behalf of the appellant Mr. Gupta attempted to distinguish the decision on the ground that the fixing of a higher tariff for the excess consumption was against public policy and that this aspect was not considered by this Court in Adoni Cotton Mills case. We do not find any merit in this argument. The demand of higher charges/tariff for electricity consumed beyond legally fixed limit is a reasonable deterrent measure providing an appropriate sanction-not as harsh as disconnection of supply of energy altogether-and cannot be opposed on the ground of public policy. We, therefore, hold that none of the two Orders is illegal or unreasonable.Mr. Gupta fairly conceded that the point was not taken in the writ petition before the High Court and he was not in a position to assert that it was actually argued on behalf of the Company in the first argument addressed before the High Court, but he claimed that the Company did press the point during the final reply. He could not deny that the point was not taken when the present appeals were filed in this Court. The judgment of the High Court does not deal with the point.The similarity in the preamble of the two Orders is described as not of great consequence as it merely borrows the language from Section 22B. Many Orders are issued under Section 3 of the Essential Commodities Act, the argument proceeds, and it cannot, therefore, be suggested that the penalty imposed in one has to be applied to the other without express language to that effect in either of the two Orders. We do not think that in view of the fact that the point was not taken on behalf of the Company while instituting the writ application in the High Court and filing the present appeals in this Court, it should be allowed to be urged at the hearing.Let us assume that the argument of Mr. Gupta is correct. Immediately the next question would arise as to whether the Board is otherwise authorised in law to levy and demand charges for the excess electricity at the higher rate and if so whether the Board can be said to have exercised its power in this regard.It was further contended that it is not essential for the Board to frame regulations for the exercise of such power.The learned Counsel appears to be right.In Adoni Cotton Mills case (supra) the State Government had made an order under Section 22B of the 1910 Act limiting the supply to 75% of the previous consumption as was done in the present case and directed the payment of punitive rates for excess consumption. The Board made supplementary orders for placing further onerous conditions on certain groups of consumers. This was challenged before the High Court inter alia on the ground that since the State Government had already acted under Section 22B, the Board could not further pass supplementary orders and that in any event since the Board had not made regulations laying down the principles under Section 79(j) of the 1948 Act, the orders were bad. Both the points (along with several others) raised by the appellant in that case were rejected by this Court. Referring to Section 49(1) of the 1948 Act, the Court observed that the power to enhance the tariff is included in the Section and the expression that the Board may supply electricity... upon such terms and conditions as the Board thinks fit in Section 49(1) is related to the terms and conditions of the agreement between the parties 7 Sub-section (1) confers power on the Board to supply electricity upon such terms and conditions as it thinks fit and the terms and conditions include the power of the Board to enhance the rates. Section 49(3) permits the Board to fix different rates for the supply of electricity having regard to certain conditions mentioned there in and any other relevant factors. It was held that the expression any other relevant factors could not be considered ejusdem generis because there is no genus of the relevant factors. In New Central Jute Mills Co. Ltd. v. U.P. State Electricity Board, (supra) the situation again was similar to the present case. The argument pressed before the Supreme Court inter alia was that the Board had no authority to make the demand in excess of the agreed rate under the agreement. Repelling the contention, the Court observed in paragraph 4 of the judgment that the agreement itself did not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of its power under Section 22B of the 1910 Act; nor did the agreement stipulate the rate at which such supply should be charged if notwithstanding the ban against the supply a consumer drew electricity in excess of the permissible quantity. In the circumstances, the Board was justified in invoking the power under Section 49(3) of the 1948 Act which authorised it to supply electricity by charging different tariff having regard to certain conditions and any other relevant factors. Section 49(3) was interpreted to be wide enough to cover a situation where electricity in excess of the quantum is drawn in disregard of the ban imposed under Section 22B of the 1910 Act. We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under Section 49(1) of the 1948 Act read with the agreement or under Section 49(3) or under both the provisions the respondent Board is fully authorised to levy and to make a demand at a higher rate than the usual tariff. It is also clear that it is not essential for the Board to make regulations indicating the basis for such levy before making the demand. The appellant has not been able to successfully show before us that the power by the Board has to be exercised in a particular manner and by adopting a particular mode. If it is assumed that a particular formality has to be completed before a demand can be legitimately raised, the appellant cannot be allowed to claim now that the same is lacking in the present case in the absence of a proper pleading in the original writ petition before the High Court. If the point had been raised in time, the respondent Board could have placed relevant materials on the issue. If at the end of the hearing of the case in the High Court the point was mentioned in the appellants final reply and included in the last installment of its written argument, it cannot cure the defect in the pleading specially when the judgment of the High Court dismissing the writ application does not deal with the point. In that view it is not necessary to test the correctness of the argument of Mr. Kacker that the appellants entitlement to receive the quantum of electricity from the Board at the normal tariff can be determined only by a combined reading of the two Orders. We do not, therefore, consider it necessary to decide as to what would have been the precisely correct answer if the point had been properly raised before the High Court at the appropriate stage.36. We do not find any merit in any of the points urged on behalf of the appellant. We were informed by the learned Counsel for the parties that the appellant does not accept the correctness of the calculations in the letter P series and the question is being examined by the High Court in a pending case.The High Court has in the present case directed the prayer for emergency supply to be considered on merits. Since these questions are not involved in the present appeals, arguments relating to these points have not been addressed before us. We, in the circumstances, make it clear that any observation made in the present case shall not be treated to have decided those points which are the subject matter of a pending case in the High Court.37. It was also pointed out at the Bar that several interim orders were issued by this Court during the pendency of the present appeals and final direction should be given in regard to them. While granting special leave this Court by its order dated 5.11.1982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs. 50,00,000 within a fortnight and another sum of Rs. 1,50,00,000 within six months with interest from 1.1.1983 at the rate of 12% per annum until payment. The future payment of the electricity bills was ordered to be made within four weeks from the service of the bills. The Court also said that the applications made by the appellants for consideration of emergency supply of the electricity should be expeditiously disposed of by the Board on merit, and all payments by the appellants will be subject to adjustment in the light of the decision on the emergency applications. By the order dated 24.11.1982 the time for payment of Rs. 50,00,000 was extended to 6.12.1982. With respect to the payment of Rs. 1,50,00,000 the Court by its order dated 6.5.1983 permitted the amount to be deposited in two equal installments. The Court also said that if it was ultimately found that the appellant had paid any amount in excess of the total liability, the Board shall repay such excess amount with interest at the rate of 12% per annum. By a subsequent order dated 23.4.1984 the appellant was required to pay a sum of Rs. 1,28,00,000 to the Board by the 10th of May, 1984 and to keep the bank guarantee alive till the final disposal of these appeals as condition for continuance of the interim order.
| 0 | 16,674 | 7,202 |
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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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had no authority to make the demand in excess of the agreed rate under the agreement. Repelling the contention, the Court observed in paragraph 4 of the judgment that the agreement itself did not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of its power under Section 22B of the 1910 Act; nor did the agreement stipulate the rate at which such supply should be charged if notwithstanding the ban against the supply a consumer drew electricity in excess of the permissible quantity. In the circumstances, the Board was justified in invoking the power under Section 49(3) of the 1948 Act which authorised it to supply electricity by charging different tariff having regard to certain conditions and any other relevant factors. Section 49(3) was interpreted to be wide enough to cover a situation where electricity in excess of the quantum is drawn in disregard of the ban imposed under Section 22B of the 1910 Act. We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under Section 49(1) of the 1948 Act read with the agreement or under Section 49(3) or under both the provisions the respondent Board is fully authorised to levy and to make a demand at a higher rate than the usual tariff. It is also clear that it is not essential for the Board to make regulations indicating the basis for such levy before making the demand. The appellant has not been able to successfully show before us that the power by the Board has to be exercised in a particular manner and by adopting a particular mode. If it is assumed that a particular formality has to be completed before a demand can be legitimately raised, the appellant cannot be allowed to claim now that the same is lacking in the present case in the absence of a proper pleading in the original writ petition before the High Court. If the point had been raised in time, the respondent Board could have placed relevant materials on the issue. If at the end of the hearing of the case in the High Court the point was mentioned in the appellants final reply and included in the last installment of its written argument, it cannot cure the defect in the pleading specially when the judgment of the High Court dismissing the writ application does not deal with the point. In that view it is not necessary to test the correctness of the argument of Mr. Kacker that the appellants entitlement to receive the quantum of electricity from the Board at the normal tariff can be determined only by a combined reading of the two Orders. We do not, therefore, consider it necessary to decide as to what would have been the precisely correct answer if the point had been properly raised before the High Court at the appropriate stage. 36. We do not find any merit in any of the points urged on behalf of the appellant. We were informed by the learned Counsel for the parties that the appellant does not accept the correctness of the calculations in the letter P series and the question is being examined by the High Court in a pending case. The appellant also asserts that even during the period commencing from November 1979 the Company had pleaded for emergency supply. The High Court has in the present case directed the prayer for emergency supply to be considered on merits. Since these questions are not involved in the present appeals, arguments relating to these points have not been addressed before us. We, in the circumstances, make it clear that any observation made in the present case shall not be treated to have decided those points which are the subject matter of a pending case in the High Court. 37. It was also pointed out at the Bar that several interim orders were issued by this Court during the pendency of the present appeals and final direction should be given in regard to them. While granting special leave this Court by its order dated 5.11.1982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs. 50,00,000 within a fortnight and another sum of Rs. 1,50,00,000 within six months with interest from 1.1.1983 at the rate of 12% per annum until payment. The future payment of the electricity bills was ordered to be made within four weeks from the service of the bills. The Court also said that the applications made by the appellants for consideration of emergency supply of the electricity should be expeditiously disposed of by the Board on merit, and all payments by the appellants will be subject to adjustment in the light of the decision on the emergency applications. By the order dated 24.11.1982 the time for payment of Rs. 50,00,000 was extended to 6.12.1982. With respect to the payment of Rs. 1,50,00,000 the Court by its order dated 6.5.1983 permitted the amount to be deposited in two equal installments. The Court also said that if it was ultimately found that the appellant had paid any amount in excess of the total liability, the Board shall repay such excess amount with interest at the rate of 12% per annum. By a subsequent order dated 23.4.1984 the appellant was required to pay a sum of Rs. 1,28,00,000 to the Board by the 10th of May, 1984 and to keep the bank guarantee alive till the final disposal of these appeals as condition for continuance of the interim order. During the hearing of the appeal a grievance was made on behalf of the respondent Board that the bank guarantee had not been effectively renewed and the learned Counsel for the appellant undertook on behalf of the Company to correct the defect. Subsequently it was stated at the Bar that proper bank guarantee had been furnished in accordance with the Courts direction.
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0
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permits the Board to fix different rates for the supply of electricity having regard to certain conditions mentioned there in and any other relevant factors. It was held that the expression any other relevant factors could not be considered ejusdem generis because there is no genus of the relevant factors. In New Central Jute Mills Co. Ltd. v. U.P. State Electricity Board, (supra) the situation again was similar to the present case. The argument pressed before the Supreme Court inter alia was that the Board had no authority to make the demand in excess of the agreed rate under the agreement. Repelling the contention, the Court observed in paragraph 4 of the judgment that the agreement itself did not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of its power under Section 22B of the 1910 Act; nor did the agreement stipulate the rate at which such supply should be charged if notwithstanding the ban against the supply a consumer drew electricity in excess of the permissible quantity. In the circumstances, the Board was justified in invoking the power under Section 49(3) of the 1948 Act which authorised it to supply electricity by charging different tariff having regard to certain conditions and any other relevant factors. Section 49(3) was interpreted to be wide enough to cover a situation where electricity in excess of the quantum is drawn in disregard of the ban imposed under Section 22B of the 1910 Act. We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under Section 49(1) of the 1948 Act read with the agreement or under Section 49(3) or under both the provisions the respondent Board is fully authorised to levy and to make a demand at a higher rate than the usual tariff. It is also clear that it is not essential for the Board to make regulations indicating the basis for such levy before making the demand. The appellant has not been able to successfully show before us that the power by the Board has to be exercised in a particular manner and by adopting a particular mode. If it is assumed that a particular formality has to be completed before a demand can be legitimately raised, the appellant cannot be allowed to claim now that the same is lacking in the present case in the absence of a proper pleading in the original writ petition before the High Court. If the point had been raised in time, the respondent Board could have placed relevant materials on the issue. If at the end of the hearing of the case in the High Court the point was mentioned in the appellants final reply and included in the last installment of its written argument, it cannot cure the defect in the pleading specially when the judgment of the High Court dismissing the writ application does not deal with the point. In that view it is not necessary to test the correctness of the argument of Mr. Kacker that the appellants entitlement to receive the quantum of electricity from the Board at the normal tariff can be determined only by a combined reading of the two Orders. We do not, therefore, consider it necessary to decide as to what would have been the precisely correct answer if the point had been properly raised before the High Court at the appropriate stage.36. We do not find any merit in any of the points urged on behalf of the appellant. We were informed by the learned Counsel for the parties that the appellant does not accept the correctness of the calculations in the letter P series and the question is being examined by the High Court in a pending case.The High Court has in the present case directed the prayer for emergency supply to be considered on merits. Since these questions are not involved in the present appeals, arguments relating to these points have not been addressed before us. We, in the circumstances, make it clear that any observation made in the present case shall not be treated to have decided those points which are the subject matter of a pending case in the High Court.37. It was also pointed out at the Bar that several interim orders were issued by this Court during the pendency of the present appeals and final direction should be given in regard to them. While granting special leave this Court by its order dated 5.11.1982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs. 50,00,000 within a fortnight and another sum of Rs. 1,50,00,000 within six months with interest from 1.1.1983 at the rate of 12% per annum until payment. The future payment of the electricity bills was ordered to be made within four weeks from the service of the bills. The Court also said that the applications made by the appellants for consideration of emergency supply of the electricity should be expeditiously disposed of by the Board on merit, and all payments by the appellants will be subject to adjustment in the light of the decision on the emergency applications. By the order dated 24.11.1982 the time for payment of Rs. 50,00,000 was extended to 6.12.1982. With respect to the payment of Rs. 1,50,00,000 the Court by its order dated 6.5.1983 permitted the amount to be deposited in two equal installments. The Court also said that if it was ultimately found that the appellant had paid any amount in excess of the total liability, the Board shall repay such excess amount with interest at the rate of 12% per annum. By a subsequent order dated 23.4.1984 the appellant was required to pay a sum of Rs. 1,28,00,000 to the Board by the 10th of May, 1984 and to keep the bank guarantee alive till the final disposal of these appeals as condition for continuance of the interim order.
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Kerala State Cashew Development Corp Vs. Shahal Hassan Mussaliar
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means the acquiring of the entire title of the expropriated owner, whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer, leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. In contradistinction, the concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and must by its very nature be of temporary duration. This Court summed up by pointing out that, the State cannot under the guise of requisition continue dominion over some ones property for an indefinite period of time, because that would be a fraud on the power conferred on the government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property, but it cannot use the power of requisition which is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and, in such a case, the order of requisition, if passed, would be a fraud upon the statute, for the Government would be requisitioning the premises, when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises, but it can be achieved only by acquiring the property, which would the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises, but it certainly cannot requisition the premises and continue the requisitioning indefinitely. 16. In Grahak Sanstha Manch v. State of Maharashtra (1994 (4) SCC 192 ), a Constitution Bench of this Court approved of the decision in H.D. Voras case (supra) and held that the said decision did not require reconsideration. However, the Constitution Bench did not approve the reasoning in H.D. Voras case (supra) that the requisition order cannot be made for a permanent purpose leaving the question open and holding that the order of requisition can continue for a reasonable period of time though in H.D. Voras case (supra) it was considered to be unreasonable in the facts of the case. In Rajendra Kumar Gupta v. State of U.P. (1997 (4) SCC 511 ), the same principle has been reiterated by this Court. 17. In Union of India v. Elphinstone Spinning and Weaving Co. Ltd. (AIR 2001 SC 724 ), this Court was concerned with a challenge to the Textile Undertakings Act, under which the Government was empowered to take over the management of certain textile mills whose financial condition had deteriorated "pending natioalisation". The question was whether this power was liable to be challenged on the ground that it amounted to acquisition in reality. Repelling the challenge, it was held by this Court that power was not even liable to challenge as abridging Article 31-A (1) of the Constitution introduced by the Constitution First Amendment Act of 1951, clause (1)(b) of which provides that, notwithstanding anything contained in Article 13, no law providing for the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 and Article 19. This Court was of the view that parliament had in enacting the Textile Industries Act, 1983 clearly indicated that the taking over was for a temporary period "pending nationalization of Textile Mills". Merely because nationalization would take long time, it cannot be urged that the power was to be exercised for indefinitely long time since the exercise of the power was delimited by the happening of a contingency. Thus, the power of requisitioning is liable to be upheld, if it is to be exercised for a temporary duration, which is limited either in terms of time or by reason of a contingency. 18. In Charanjit v. Union of India (AIR 1951 SC 41 ) the difference between the temporary and transitory nature of requisition and permanent nature of acquisition was highlighted by this Court. It was inter alia held that upon acquisition the entire bundle of rights which were vested in the former original holder would pass on to the acquirer leaving nothing in the former, while requisition would keep merely possession in the person requisitioning while leaving the title of the owner in tact. In other words, if the possession of property by exercise of dominion thereupon is continued indefinitely, it would amount to colourable exercise of or fraud on the power and nothing but a back door expropriation of property. As was observed in Raghubir Singh v. Court of Wards, Ajmer (AIR 1953 SC 373 ) and Corporation of Calcutta v. Cal. Tramways Co. Ltd. (AIR 1964 SC 1279 ) that though it is open to the State to impose reasonable restrictions upon fundamental rights guaranteed under the Constitution, the nature of the restrictions should not be such that right guaranteed becomes illusory. If that happens then the restrictions should cease to be reasonable. We find there is no merit in all these appeals which are to be dismissed. We direct accordingly. It is, however, brought to our notice by learned counsel for the appellant that the State Government intends to limit the period by another ten years. This is a matter about which we express no opinion.
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0[ds]10. The grievance of the factory owner was that the authority declined to extend the lease and refused to renew the lease in favour of the Corporation. A request was made to return the concerned cashew factory with all its assets. That prayer was also not complied with. There were pleas of set up of certain amounts/dues. Having failed in his attempt to persuade the authorities to return its factory and its assets, the Original Petition No.16424/1994 was filed for a direction to the authorities to hand back the possession of the concerned cashew factory with all its assets. During the pendency of the original petition, notice was served under Section 3(1) of the Act, notifying the intention to requisition the concerned cashew factory under the Act for a further period of five years on the ground that if the owner is put in possession of the cashew factory, he may not run the factory properly, in accordance with law and may either sell it or lease it out to private individuals resulting larger scale unemployment of workers and adversely affecting their part of service. A statement of objection was filed, inter alia, taking the stand that the Government has no right to extend the lease for an indefinite period. It was stated that no such fact existed which could have enabled the State Government to arrive at a decision that upon return of the factory, they would not run it or close it down or lease it out to the private individuals resulting in large scale unemployment of workers or thereby adversely affecting the conditions of workers. By another notice, the Government extended the period of requisition for a period of five years. Objection was also filed.11. Section 3 of the Amending Act validated the continued possession of the cashew factories requisitioned under Section 3(1) of the Act which had vested in the second respondent Corporation under(3) of that Section notwithstanding the expiry of the lease period and notwithstanding anything contained in any law, or any decree or order of any court, and notwithstanding anything to the contrary in the terms of the contract or agreement. The result of Amending Act was that it validated the action of the appellant and the second respondent even if contrary to the terms of the lease, even if time had expired, and even if there was a decree for eviction made by a competent court of law.It was noted that in Sonia Bhatias case (supra) this Court upheld the validity of the U.P. Imposition of Ceiling on Land Holdings Act, 1961 on the ground that it was a valuable piece of social legislation with the object of ensuring equitable distribution of land by taking away land from large tenure holders and distributing the amount among the landless tenants or using the same for public utility schemes which was in the larger interest of the community. The High Court noted that the question to be answered was, however, justifying the initial requisitioning of the cashew factory was, since requisition by definition must be of temporary character and it cannot be tuned into a permanent deprivation of proprietary rights so as to amount to acquisition at back door. This is precisely what this Court has described as a fraud on the power in H.D. Vohras case. It was submitted that the High Court should not have treated an action of the State Government and of the Corporation to be actually an opinion or acquisition under the colour of requisition. Learned counsel for the respondent on the other hand submitted that both the learned Single Judge and the Division Bench have analysed factual scenario in great detail keeping in view the statutory provisions. The conclusion as submitted would not warrant any interference.15. The first contention which weighed with the learned Single Judge was that any statute which empowers the State to continue to extend a requisition order for an indefinite period was nothing but an order for acquisition, it was a colourable exercise of power, which the State did not possess under the Act. The distinction between requisition and acquisition of property has been the subject matter of several decisions of the Supreme Court and the line of demarcation between the two is well defined in the celebrated judgment in H.D. Vora v. State of Maharashtra (AIR 1984 SC 866 ). In this case this Court had occasion to consider the validity of repeated continued requisitions of private premises initially acquired under the emergency powers during war years. This Court pointed out that the two concepts, one of requisition and the other of acquisition, are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner, whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer, leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. In contradistinction, the concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and must by its very nature be of temporary duration. This Court summed up by pointing out that, the State cannot under the guise of requisition continue dominion over some ones property for an indefinite period of time, because that would be a fraud on the power conferred on the government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property, but it cannot use the power of requisition which is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and, in such a case, the order of requisition, if passed, would be a fraud upon the statute, for the Government would be requisitioning the premises, when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises, but it can be achieved only by acquiring the property, which would the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises, but it certainly cannot requisition the premises and continue the requisitioningfind there is no merit in all these appeals which are to be dismissed. We direct accordingly. It is, however, brought to our notice by learned counsel for the appellant that the State Government intends to limit the period by another ten years. This is a matter about which we express no opinion. The appeals fail and are dismissed with no orders as to costs.
| 0 | 4,632 | 1,280 |
### 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:
means the acquiring of the entire title of the expropriated owner, whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer, leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. In contradistinction, the concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and must by its very nature be of temporary duration. This Court summed up by pointing out that, the State cannot under the guise of requisition continue dominion over some ones property for an indefinite period of time, because that would be a fraud on the power conferred on the government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property, but it cannot use the power of requisition which is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and, in such a case, the order of requisition, if passed, would be a fraud upon the statute, for the Government would be requisitioning the premises, when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises, but it can be achieved only by acquiring the property, which would the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises, but it certainly cannot requisition the premises and continue the requisitioning indefinitely. 16. In Grahak Sanstha Manch v. State of Maharashtra (1994 (4) SCC 192 ), a Constitution Bench of this Court approved of the decision in H.D. Voras case (supra) and held that the said decision did not require reconsideration. However, the Constitution Bench did not approve the reasoning in H.D. Voras case (supra) that the requisition order cannot be made for a permanent purpose leaving the question open and holding that the order of requisition can continue for a reasonable period of time though in H.D. Voras case (supra) it was considered to be unreasonable in the facts of the case. In Rajendra Kumar Gupta v. State of U.P. (1997 (4) SCC 511 ), the same principle has been reiterated by this Court. 17. In Union of India v. Elphinstone Spinning and Weaving Co. Ltd. (AIR 2001 SC 724 ), this Court was concerned with a challenge to the Textile Undertakings Act, under which the Government was empowered to take over the management of certain textile mills whose financial condition had deteriorated "pending natioalisation". The question was whether this power was liable to be challenged on the ground that it amounted to acquisition in reality. Repelling the challenge, it was held by this Court that power was not even liable to challenge as abridging Article 31-A (1) of the Constitution introduced by the Constitution First Amendment Act of 1951, clause (1)(b) of which provides that, notwithstanding anything contained in Article 13, no law providing for the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 and Article 19. This Court was of the view that parliament had in enacting the Textile Industries Act, 1983 clearly indicated that the taking over was for a temporary period "pending nationalization of Textile Mills". Merely because nationalization would take long time, it cannot be urged that the power was to be exercised for indefinitely long time since the exercise of the power was delimited by the happening of a contingency. Thus, the power of requisitioning is liable to be upheld, if it is to be exercised for a temporary duration, which is limited either in terms of time or by reason of a contingency. 18. In Charanjit v. Union of India (AIR 1951 SC 41 ) the difference between the temporary and transitory nature of requisition and permanent nature of acquisition was highlighted by this Court. It was inter alia held that upon acquisition the entire bundle of rights which were vested in the former original holder would pass on to the acquirer leaving nothing in the former, while requisition would keep merely possession in the person requisitioning while leaving the title of the owner in tact. In other words, if the possession of property by exercise of dominion thereupon is continued indefinitely, it would amount to colourable exercise of or fraud on the power and nothing but a back door expropriation of property. As was observed in Raghubir Singh v. Court of Wards, Ajmer (AIR 1953 SC 373 ) and Corporation of Calcutta v. Cal. Tramways Co. Ltd. (AIR 1964 SC 1279 ) that though it is open to the State to impose reasonable restrictions upon fundamental rights guaranteed under the Constitution, the nature of the restrictions should not be such that right guaranteed becomes illusory. If that happens then the restrictions should cease to be reasonable. We find there is no merit in all these appeals which are to be dismissed. We direct accordingly. It is, however, brought to our notice by learned counsel for the appellant that the State Government intends to limit the period by another ten years. This is a matter about which we express no opinion.
### Response:
0
### Explanation:
their part of service. A statement of objection was filed, inter alia, taking the stand that the Government has no right to extend the lease for an indefinite period. It was stated that no such fact existed which could have enabled the State Government to arrive at a decision that upon return of the factory, they would not run it or close it down or lease it out to the private individuals resulting in large scale unemployment of workers or thereby adversely affecting the conditions of workers. By another notice, the Government extended the period of requisition for a period of five years. Objection was also filed.11. Section 3 of the Amending Act validated the continued possession of the cashew factories requisitioned under Section 3(1) of the Act which had vested in the second respondent Corporation under(3) of that Section notwithstanding the expiry of the lease period and notwithstanding anything contained in any law, or any decree or order of any court, and notwithstanding anything to the contrary in the terms of the contract or agreement. The result of Amending Act was that it validated the action of the appellant and the second respondent even if contrary to the terms of the lease, even if time had expired, and even if there was a decree for eviction made by a competent court of law.It was noted that in Sonia Bhatias case (supra) this Court upheld the validity of the U.P. Imposition of Ceiling on Land Holdings Act, 1961 on the ground that it was a valuable piece of social legislation with the object of ensuring equitable distribution of land by taking away land from large tenure holders and distributing the amount among the landless tenants or using the same for public utility schemes which was in the larger interest of the community. The High Court noted that the question to be answered was, however, justifying the initial requisitioning of the cashew factory was, since requisition by definition must be of temporary character and it cannot be tuned into a permanent deprivation of proprietary rights so as to amount to acquisition at back door. This is precisely what this Court has described as a fraud on the power in H.D. Vohras case. It was submitted that the High Court should not have treated an action of the State Government and of the Corporation to be actually an opinion or acquisition under the colour of requisition. Learned counsel for the respondent on the other hand submitted that both the learned Single Judge and the Division Bench have analysed factual scenario in great detail keeping in view the statutory provisions. The conclusion as submitted would not warrant any interference.15. The first contention which weighed with the learned Single Judge was that any statute which empowers the State to continue to extend a requisition order for an indefinite period was nothing but an order for acquisition, it was a colourable exercise of power, which the State did not possess under the Act. The distinction between requisition and acquisition of property has been the subject matter of several decisions of the Supreme Court and the line of demarcation between the two is well defined in the celebrated judgment in H.D. Vora v. State of Maharashtra (AIR 1984 SC 866 ). In this case this Court had occasion to consider the validity of repeated continued requisitions of private premises initially acquired under the emergency powers during war years. This Court pointed out that the two concepts, one of requisition and the other of acquisition, are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner, whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer, leaving nothing to the former. The concept of acquisition has an air of permanence and finality in that there is transference of the title of the original holder to the acquiring authority. In contradistinction, the concept of requisition involves merely taking of domain or control over property without acquiring rights of ownership and must by its very nature be of temporary duration. This Court summed up by pointing out that, the State cannot under the guise of requisition continue dominion over some ones property for an indefinite period of time, because that would be a fraud on the power conferred on the government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property, but it cannot use the power of requisition which is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and, in such a case, the order of requisition, if passed, would be a fraud upon the statute, for the Government would be requisitioning the premises, when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises, but it can be achieved only by acquiring the property, which would the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises, but it certainly cannot requisition the premises and continue the requisitioningfind there is no merit in all these appeals which are to be dismissed. We direct accordingly. It is, however, brought to our notice by learned counsel for the appellant that the State Government intends to limit the period by another ten years. This is a matter about which we express no opinion. The appeals fail and are dismissed with no orders as to costs.
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Smt. Bhagwati Debi Goenka Vs. Kishorilal Goenka & Others
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1. Herein we are asked to restrain the Receiver by means of an injuction from appointing the respondent Kishori Lal Goenka as his agent to work Pit No. 1 in the Colliery in dispute. Alternatively we are asked to close down that pit.2. The Receiver was appointed for managing that pit. He was authorised to appoint an agent for working the pit in question. He first came to the conclusion without any objection from the parties that it would be of the interest of company if one or other in the parties to the litigation is appointed as the agent. That conclusion of his is not challenged before us. Thereafter he tried to select from among the parties one of them to be his agent for running the pit. with the agreement of the parties he adopted the basis that the party who is prepared to agree to give a guarantee of the highest minimum profit should be selected as the agent. At first suggested that Re. 1.50 n.p. per tonne would be the proper minimum guarantee. Both the parties represented to him that it would not be possible to give the guarantee. They wanted him to reduce the minimum guarantee. He accordingly reduced the minimum guarantee to Re. 1/- per tonne. But both sides again represented that that guarantee too was on the high side. Hence another meeting was held on July 20, 1967 to decide the matter. He informed the parties on that day that he has finally come to the conclusion that the minimum guarantee should be 90 n.p. per tonne plus the establishment expenses and the party who is prepared to give that guarantee would be appointed as his agent. The parties wanted sometime to consider that offer. For that purpose he adjourned the matter to August 2, 1971. When the parties met on 2-8-1971, Solicitor for the petitioner represented that the minimum guarantee suggested on the previous occasion was high and the receiver should reduce the same. But the solicitor for the respondent Kishori Lal Goenka - who will be hereinafter referred to as the respondent, represented that his client accepts the offer made by the receiver. After the solicitor for the respondent accepted the offer of the receiver, the Solicitor for the petitioner said that his client, was also willing to accept the offer made by the receiver. The receiver was evidently in a fix at that stage. He adjourned the matter for further consideration. Before the adjournment date, he received a communication from the solicitor for the petitioner that his client was willing to give a minimum guarantee of Re. 1.25 n.p. per tonne but that should be inclusive of the administration charges. This was really counter offer. Meanwhile, it appears that the respondent advanced the contention that the receivers final offer having been accepted by him on August 2, 1971 there was a concluded contract and the receiver was bound by it. The receiver did not know how to solve this difficulty. Hence he consulted the Advocate-General of West-Bengal. It is seen from the proceeding maintained by the receiver that there was a meeting at the house of the advocate-General of West Bengal. At that meeting, apart from the receiver, the Solicitor for the petitioner as well as the Solicitor for the respondent were present. After discussing the matter with all of them the Advocate-General of West Bengal appears to have advised the receiver that there was a concluded contract between him and the respondent on August 2, 1971. Acting on the basis of that advice the receiver appointed the respondent as his agent to work Pit No. 1.3. From the facts set out earlier, it is absolutely clear that the receiver had acted in the most proper manner. There is no basis for the allegation made by the petitioner that he had been coerced to appoint the respondent Kishori Lal Goenka as his agent. The fact that at one stage the respondent had filed an application to this court to remove the receiver can in no manner be said to have influenced the decision of the receiver to appoint the respondent as his agent. There are no grounds to think that the receiver had acted either improperly or under the coercion. The petitioner has not passed prayer to close down Pit No. 1
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0[ds]3. From the facts set out earlier, it is absolutely clear that the receiver had acted in the most proper manner. There is no basis for the allegation made by the petitioner that he had been coerced to appoint the respondent Kishori Lal Goenka as his agent. The fact that at one stage the respondent had filed an application to this court to remove the receiver can in no manner be said to have influenced the decision of the receiver to appoint the respondent as his agent. There are no grounds to think that the receiver had acted either improperly or under the coercion. The petitioner has not passed prayer to close down Pit No. 1
| 0 | 780 | 127 |
### 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:
1. Herein we are asked to restrain the Receiver by means of an injuction from appointing the respondent Kishori Lal Goenka as his agent to work Pit No. 1 in the Colliery in dispute. Alternatively we are asked to close down that pit.2. The Receiver was appointed for managing that pit. He was authorised to appoint an agent for working the pit in question. He first came to the conclusion without any objection from the parties that it would be of the interest of company if one or other in the parties to the litigation is appointed as the agent. That conclusion of his is not challenged before us. Thereafter he tried to select from among the parties one of them to be his agent for running the pit. with the agreement of the parties he adopted the basis that the party who is prepared to agree to give a guarantee of the highest minimum profit should be selected as the agent. At first suggested that Re. 1.50 n.p. per tonne would be the proper minimum guarantee. Both the parties represented to him that it would not be possible to give the guarantee. They wanted him to reduce the minimum guarantee. He accordingly reduced the minimum guarantee to Re. 1/- per tonne. But both sides again represented that that guarantee too was on the high side. Hence another meeting was held on July 20, 1967 to decide the matter. He informed the parties on that day that he has finally come to the conclusion that the minimum guarantee should be 90 n.p. per tonne plus the establishment expenses and the party who is prepared to give that guarantee would be appointed as his agent. The parties wanted sometime to consider that offer. For that purpose he adjourned the matter to August 2, 1971. When the parties met on 2-8-1971, Solicitor for the petitioner represented that the minimum guarantee suggested on the previous occasion was high and the receiver should reduce the same. But the solicitor for the respondent Kishori Lal Goenka - who will be hereinafter referred to as the respondent, represented that his client accepts the offer made by the receiver. After the solicitor for the respondent accepted the offer of the receiver, the Solicitor for the petitioner said that his client, was also willing to accept the offer made by the receiver. The receiver was evidently in a fix at that stage. He adjourned the matter for further consideration. Before the adjournment date, he received a communication from the solicitor for the petitioner that his client was willing to give a minimum guarantee of Re. 1.25 n.p. per tonne but that should be inclusive of the administration charges. This was really counter offer. Meanwhile, it appears that the respondent advanced the contention that the receivers final offer having been accepted by him on August 2, 1971 there was a concluded contract and the receiver was bound by it. The receiver did not know how to solve this difficulty. Hence he consulted the Advocate-General of West-Bengal. It is seen from the proceeding maintained by the receiver that there was a meeting at the house of the advocate-General of West Bengal. At that meeting, apart from the receiver, the Solicitor for the petitioner as well as the Solicitor for the respondent were present. After discussing the matter with all of them the Advocate-General of West Bengal appears to have advised the receiver that there was a concluded contract between him and the respondent on August 2, 1971. Acting on the basis of that advice the receiver appointed the respondent as his agent to work Pit No. 1.3. From the facts set out earlier, it is absolutely clear that the receiver had acted in the most proper manner. There is no basis for the allegation made by the petitioner that he had been coerced to appoint the respondent Kishori Lal Goenka as his agent. The fact that at one stage the respondent had filed an application to this court to remove the receiver can in no manner be said to have influenced the decision of the receiver to appoint the respondent as his agent. There are no grounds to think that the receiver had acted either improperly or under the coercion. The petitioner has not passed prayer to close down Pit No. 1
### Response:
0
### Explanation:
3. From the facts set out earlier, it is absolutely clear that the receiver had acted in the most proper manner. There is no basis for the allegation made by the petitioner that he had been coerced to appoint the respondent Kishori Lal Goenka as his agent. The fact that at one stage the respondent had filed an application to this court to remove the receiver can in no manner be said to have influenced the decision of the receiver to appoint the respondent as his agent. There are no grounds to think that the receiver had acted either improperly or under the coercion. The petitioner has not passed prayer to close down Pit No. 1
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Yogendra Tiwari Vs. District Judge, Gorakhpur and Others
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and 33(8)). - (1) The District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected. (2) The inspection of the building, so far as possible shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the officer of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the mean time any objection is received, not before the disposal of such objection. (3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce. 9. (3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant building on the notice board of that Office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed, the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11. 6. It is needless to stress that the making of an order of allotment by the District Magistrate under Section 16(1)(a) of the Act consists of two stages. The first stage is actual vacancy of a building or a part thereof in consequence of an intimation given by the landlord or the tenant under Section 15, or a declaration of deemed vacancy of such building or part thereof under Section 12(4). It is clear from the terms of the proviso to Section 16(1) that in the case of a deemed vacancy under Section 12(4) of the Act, the District Magistrate is required to give an opportunity to the landlord to the tenant, as the case may be, of showing that no declaration of deemed vacancy under Section 12(4) could at all be made in this case before making an order of allotment under Section 16(1)(a). The use of the word shall in the proviso to Section 16(1)(a) makes the requirement mandatory. The District Magistrate therefore cannot make an order of allotment under Section 16(1)(a) on the strength of deemed vacancy under Section 12(4) until the landlord or the tenant, as the case may be, has an opportunity of being heard in the matter. The District Magistrate is required in terms of Rules 8(2) to give an opportunity to the landlord to file his objection or make his submission, if any, to the making of an order of allotment under Section 16(1)(a). In the case of deemed vacancy referred to in Section 12(4), he is entitled to show that none of the clauses (a) to (c) of Section 12(1) comes into play. The second stage is reached when there is a deemed vacancy under section Section 12(4) or actual vacancy in consequence of an intimation under Section 15. Under Rule 9(3) the District Magistrate is required to serve a notice on the landlord intimating the date on which the question of allotment will be considered. The landlord may, in response to the notice issued to him under Rule 9(3), make out a case for release of the building or a part thereof, or any land appurtenant thereto, for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade, calling et cetera. The landlord has clearly a right to have an order passed by the District Magistrate under Section 16(1)(a)(b) for the release of the building or a part thereof for any of the purposes set out in Section 16(2). The District Magistrate may release the building or part thereof or any land appurtenant thereto under Section 16(1)(a)(b) where any of the aforesaid conditions are proved to exist to his satisfaction. If the landlord fails to satisfy the District Magistrate on any of these aspects, the District Magistrate would reject his application for release and proceed to make an order of allotment under Section 16(1)(a). The proviso to Section 16(1) has been introduced to meet with the requirements of principles of natural justice. As vacancy, actual, expected or deemed is a jurisdictional fact for the making of an order of allotment under Section 16(1)(a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions viz. Proviso to Section 16(1) and Rule 8(2) and 9(3) of the Rule framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. The District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16(1) clearly exercises a quasi-judicial function and therefore he has the duty to hear. There must be an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned. The impugned order of allotment passed by the Rent Control and Eviction Officer having been made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity.
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1[ds]6. It is needless to stress that the making of an order of allotment by the District Magistrate under Section 16(1)(a) of the Act consists of two stages. The first stage is actual vacancy of a building or a part thereof in consequence of an intimation given by the landlord or the tenant under Section 15, or a declaration of deemed vacancy of such building or part thereof under Section 12(4). It is clear from the terms of the proviso to Section 16(1) that in the case of a deemed vacancy under Section 12(4) of the Act, the District Magistrate is required to give an opportunity to the landlord to the tenant, as the case may be, of showing that no declaration of deemed vacancy under Section 12(4) could at all be made in this case before making an order of allotment under Section 16(1)(a). The use of the word shall in the proviso to Section 16(1)(a) makes the requirement mandatory. The District Magistrate therefore cannot make an order of allotment under Section 16(1)(a) on the strength of deemed vacancy under Section 12(4) until the landlord or the tenant, as the case may be, has an opportunity of being heard in the matter. The District Magistrate is required in terms of Rules 8(2) to give an opportunity to the landlord to file his objection or make his submission, if any, to the making of an order of allotment under Section 16(1)(a). In the case of deemed vacancy referred to in Section 12(4), he is entitled to show that none of the clauses (a) to (c) of Section 12(1) comes into play. The second stage is reached when there is a deemed vacancy under section Section 12(4) or actual vacancy in consequence of an intimation under Section 15. Under Rule 9(3) the District Magistrate is required to serve a notice on the landlord intimating the date on which the question of allotment will be considered. The landlord may, in response to the notice issued to him under Rule 9(3), make out a case for release of the building or a part thereof, or any land appurtenant thereto, for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade, calling et cetera. The landlord has clearly a right to have an order passed by the District Magistrate under Section 16(1)(a)(b) for the release of the building or a part thereof for any of the purposes set out in Section 16(2). The District Magistrate may release the building or part thereof or any land appurtenant thereto under Section 16(1)(a)(b) where any of the aforesaid conditions are proved to exist to his satisfaction. If the landlord fails to satisfy the District Magistrate on any of these aspects, the District Magistrate would reject his application for release and proceed to make an order of allotment under Section 16(1)(a). The proviso to Section 16(1) has been introduced to meet with the requirements of principles of natural justice. As vacancy, actual, expected or deemed is a jurisdictional fact for the making of an order of allotment under Section 16(1)(a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions viz. Proviso to Section 16(1) and Rule 8(2) and 9(3) of the Rule framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. The District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16(1) clearly exercises al function and therefore he has the duty to hear. There must be an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned. The impugned order of allotment passed by the Rent Control and Eviction Officer having been made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity.
| 1 | 2,251 | 856 |
### 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:
and 33(8)). - (1) The District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected. (2) The inspection of the building, so far as possible shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the officer of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the mean time any objection is received, not before the disposal of such objection. (3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce. 9. (3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant building on the notice board of that Office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed, the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11. 6. It is needless to stress that the making of an order of allotment by the District Magistrate under Section 16(1)(a) of the Act consists of two stages. The first stage is actual vacancy of a building or a part thereof in consequence of an intimation given by the landlord or the tenant under Section 15, or a declaration of deemed vacancy of such building or part thereof under Section 12(4). It is clear from the terms of the proviso to Section 16(1) that in the case of a deemed vacancy under Section 12(4) of the Act, the District Magistrate is required to give an opportunity to the landlord to the tenant, as the case may be, of showing that no declaration of deemed vacancy under Section 12(4) could at all be made in this case before making an order of allotment under Section 16(1)(a). The use of the word shall in the proviso to Section 16(1)(a) makes the requirement mandatory. The District Magistrate therefore cannot make an order of allotment under Section 16(1)(a) on the strength of deemed vacancy under Section 12(4) until the landlord or the tenant, as the case may be, has an opportunity of being heard in the matter. The District Magistrate is required in terms of Rules 8(2) to give an opportunity to the landlord to file his objection or make his submission, if any, to the making of an order of allotment under Section 16(1)(a). In the case of deemed vacancy referred to in Section 12(4), he is entitled to show that none of the clauses (a) to (c) of Section 12(1) comes into play. The second stage is reached when there is a deemed vacancy under section Section 12(4) or actual vacancy in consequence of an intimation under Section 15. Under Rule 9(3) the District Magistrate is required to serve a notice on the landlord intimating the date on which the question of allotment will be considered. The landlord may, in response to the notice issued to him under Rule 9(3), make out a case for release of the building or a part thereof, or any land appurtenant thereto, for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade, calling et cetera. The landlord has clearly a right to have an order passed by the District Magistrate under Section 16(1)(a)(b) for the release of the building or a part thereof for any of the purposes set out in Section 16(2). The District Magistrate may release the building or part thereof or any land appurtenant thereto under Section 16(1)(a)(b) where any of the aforesaid conditions are proved to exist to his satisfaction. If the landlord fails to satisfy the District Magistrate on any of these aspects, the District Magistrate would reject his application for release and proceed to make an order of allotment under Section 16(1)(a). The proviso to Section 16(1) has been introduced to meet with the requirements of principles of natural justice. As vacancy, actual, expected or deemed is a jurisdictional fact for the making of an order of allotment under Section 16(1)(a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions viz. Proviso to Section 16(1) and Rule 8(2) and 9(3) of the Rule framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. The District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16(1) clearly exercises a quasi-judicial function and therefore he has the duty to hear. There must be an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned. The impugned order of allotment passed by the Rent Control and Eviction Officer having been made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity.
### Response:
1
### Explanation:
6. It is needless to stress that the making of an order of allotment by the District Magistrate under Section 16(1)(a) of the Act consists of two stages. The first stage is actual vacancy of a building or a part thereof in consequence of an intimation given by the landlord or the tenant under Section 15, or a declaration of deemed vacancy of such building or part thereof under Section 12(4). It is clear from the terms of the proviso to Section 16(1) that in the case of a deemed vacancy under Section 12(4) of the Act, the District Magistrate is required to give an opportunity to the landlord to the tenant, as the case may be, of showing that no declaration of deemed vacancy under Section 12(4) could at all be made in this case before making an order of allotment under Section 16(1)(a). The use of the word shall in the proviso to Section 16(1)(a) makes the requirement mandatory. The District Magistrate therefore cannot make an order of allotment under Section 16(1)(a) on the strength of deemed vacancy under Section 12(4) until the landlord or the tenant, as the case may be, has an opportunity of being heard in the matter. The District Magistrate is required in terms of Rules 8(2) to give an opportunity to the landlord to file his objection or make his submission, if any, to the making of an order of allotment under Section 16(1)(a). In the case of deemed vacancy referred to in Section 12(4), he is entitled to show that none of the clauses (a) to (c) of Section 12(1) comes into play. The second stage is reached when there is a deemed vacancy under section Section 12(4) or actual vacancy in consequence of an intimation under Section 15. Under Rule 9(3) the District Magistrate is required to serve a notice on the landlord intimating the date on which the question of allotment will be considered. The landlord may, in response to the notice issued to him under Rule 9(3), make out a case for release of the building or a part thereof, or any land appurtenant thereto, for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade, calling et cetera. The landlord has clearly a right to have an order passed by the District Magistrate under Section 16(1)(a)(b) for the release of the building or a part thereof for any of the purposes set out in Section 16(2). The District Magistrate may release the building or part thereof or any land appurtenant thereto under Section 16(1)(a)(b) where any of the aforesaid conditions are proved to exist to his satisfaction. If the landlord fails to satisfy the District Magistrate on any of these aspects, the District Magistrate would reject his application for release and proceed to make an order of allotment under Section 16(1)(a). The proviso to Section 16(1) has been introduced to meet with the requirements of principles of natural justice. As vacancy, actual, expected or deemed is a jurisdictional fact for the making of an order of allotment under Section 16(1)(a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions viz. Proviso to Section 16(1) and Rule 8(2) and 9(3) of the Rule framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. The District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16(1) clearly exercises al function and therefore he has the duty to hear. There must be an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned. The impugned order of allotment passed by the Rent Control and Eviction Officer having been made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity.
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M/S Allied Motors Ltd Vs. M/S Bharat Petroleum Corp.Ltd
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prosecution cannot establish its case against any of the accused and accused persons are liable to be discharged on this ground alone and no charges can be framed.Further, it is an admitted that that there was no receipt of two samples from each source being handed over to the petitioner. This is clear evidence of the fact that the samples were never handed over. In addition, the High Court in its order dated 9.9.2004 held that ".. there is no manner of doubt that the principles of law applied to the given facts of the present case are squarely covered by the judgment of the Supreme court in Harbanslal Sahnias case." 48. Mr. Mukul Rohtagi, learned Senior Advocate appearing for the appellant in support of his contentions placed reliance on some of the following judgments. 49. In Harbanslal Sahnia and Another (supra), the Court dealt with the question of termination of dealership by the Indian Oil Corporation Ltd. In this case, it was asserted before this Court that dealership has been terminated on irrelevant and non-existent grounds, therefore, the order of termination is liable to be set aside. In this case, there has not been compliance of the procedure. The failure of the sample taken from appellants outlet on 11.2.2000 becomes an irrelevant and non-existent fact which could not have been relied on by the respondent Corporation for cancelling the appellants licence. 50. In the above case, the Court came to the conclusion that the dealership was terminated on irrelevant and non-existent cause. The Court while allowing the appeal quashed and set aside the Corporations order terminating dealership of the appellants. 51. Reliance has been placed on the celebrated judgment of the Privy Council in Nazir Ahmad v. King Emperor AIR 1936 PC 253 wherein the principle has been enunciated that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 52. Reliance has also been placed on decision in Ramana Dayaram Shetty (supra) wherein this Court has held thus: "The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory." 53. In this case, the Court held that the action of the respondent was invalid. The acceptance of the tender was invalid as being violative of equality clause of Constitution as also of the rule of administrative law inhibiting arbitrary action. Reliance has been placed on Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others (1991) 1 SCC 212 , the Court observed thus: "48. ......Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power." 54. Reliance has also been placed on Karnataka State Forest Industries Corporation v. Indian Rocks (2009) 1 SCC 150 , the Court observed thus: "38. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable (See: ABL International Ltd. v. Export Credit Guarantee Corpn. Of India Ltd. (2004) 3 SCC 553). 55. Reliance has also been placed on Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd. (1983) 3 SCC 379 . In this case the Court held that the public corporation dealing with public cannot act arbitrarily and its action must be in conformity with some principles which meets the test of reason and relevance. We have heard the learned counsel for the parties at length and have perused the decisions relied on by the parties. 56. In the instant case, samples were taken on 15th May, 2000. On the very next day i.e. on 16th May, 2000, without even giving a show-cause notice and/or giving an opportunity of hearing, the respondent-Corporation terminated the dealership of the appellant. The appellant had been operating the petrol pump for the respondent for the last 30 years and was given 10 awards declaring its dealership as the best petrol pump in the entire State of NCT Delhi. During this period, on a number of occasions, samples were tested by the respondent and were found to be as per specifications. 57. In the instant case, the haste in which 30 years old dealership was terminated even without giving show-cause notice and/or giving an opportunity of hearing clearly indicates that the entire exercise was carried out by the respondent Corporation non-existent, irrelevant and on extraneous considerations. There has been a total violation of the provisions of law and the principles of natural justice. Samples were collected in complete violation of the procedural laws and in non-adherence of the guidelines of the respondent Corporation.On consideration of the totality of the facts and circumstances of this case, it becomes imperative in the interest of justice to quash and set aside the termination order of the dealership. We, accordingly, quash the same. Consequently, we direct the respondent-Corporation to handover the possession of the petrol pump and restore the dealership of petrol pump to the appellant within three months from the date of this judgment. 58.
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1[ds]In the instant case, samples were taken on 15th May, 2000. On the very next day i.e. on 16th May, 2000, without even giving a show-cause notice and/or giving an opportunity of hearing, the respondent-Corporation terminated the dealership of the appellant. The appellant had been operating the petrol pump for the respondent for the last 30 years and was given 10 awards declaring its dealership as the best petrol pump in the entire State of NCT Delhi. During this period, on a number of occasions, samples were tested by the respondent and were found to be as per specifications.In the instant case, the haste in which 30 years old dealership was terminated even without giving show-cause notice and/or giving an opportunity of hearing clearly indicates that the entire exercise was carried out by the respondent Corporation non-existent, irrelevant and on extraneous considerations. There has been a total violation of the provisions of law and the principles of natural justice. Samples were collected in complete violation of the procedural laws and in non-adherence of the guidelines of the respondent Corporation.n consideration of the totality of the facts and circumstances of this case, it becomes imperative in the interest of justice to quash and set aside the termination order of the dealership. We, accordingly, quash the same. Consequently, we direct the respondent-Corporation to handover the possession of the petrol pump and restore the dealership of petrol pump to the appellant within three months from the date of this judgment.
| 1 | 6,447 | 273 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
prosecution cannot establish its case against any of the accused and accused persons are liable to be discharged on this ground alone and no charges can be framed.Further, it is an admitted that that there was no receipt of two samples from each source being handed over to the petitioner. This is clear evidence of the fact that the samples were never handed over. In addition, the High Court in its order dated 9.9.2004 held that ".. there is no manner of doubt that the principles of law applied to the given facts of the present case are squarely covered by the judgment of the Supreme court in Harbanslal Sahnias case." 48. Mr. Mukul Rohtagi, learned Senior Advocate appearing for the appellant in support of his contentions placed reliance on some of the following judgments. 49. In Harbanslal Sahnia and Another (supra), the Court dealt with the question of termination of dealership by the Indian Oil Corporation Ltd. In this case, it was asserted before this Court that dealership has been terminated on irrelevant and non-existent grounds, therefore, the order of termination is liable to be set aside. In this case, there has not been compliance of the procedure. The failure of the sample taken from appellants outlet on 11.2.2000 becomes an irrelevant and non-existent fact which could not have been relied on by the respondent Corporation for cancelling the appellants licence. 50. In the above case, the Court came to the conclusion that the dealership was terminated on irrelevant and non-existent cause. The Court while allowing the appeal quashed and set aside the Corporations order terminating dealership of the appellants. 51. Reliance has been placed on the celebrated judgment of the Privy Council in Nazir Ahmad v. King Emperor AIR 1936 PC 253 wherein the principle has been enunciated that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 52. Reliance has also been placed on decision in Ramana Dayaram Shetty (supra) wherein this Court has held thus: "The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory." 53. In this case, the Court held that the action of the respondent was invalid. The acceptance of the tender was invalid as being violative of equality clause of Constitution as also of the rule of administrative law inhibiting arbitrary action. Reliance has been placed on Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others (1991) 1 SCC 212 , the Court observed thus: "48. ......Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power." 54. Reliance has also been placed on Karnataka State Forest Industries Corporation v. Indian Rocks (2009) 1 SCC 150 , the Court observed thus: "38. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable (See: ABL International Ltd. v. Export Credit Guarantee Corpn. Of India Ltd. (2004) 3 SCC 553). 55. Reliance has also been placed on Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd. (1983) 3 SCC 379 . In this case the Court held that the public corporation dealing with public cannot act arbitrarily and its action must be in conformity with some principles which meets the test of reason and relevance. We have heard the learned counsel for the parties at length and have perused the decisions relied on by the parties. 56. In the instant case, samples were taken on 15th May, 2000. On the very next day i.e. on 16th May, 2000, without even giving a show-cause notice and/or giving an opportunity of hearing, the respondent-Corporation terminated the dealership of the appellant. The appellant had been operating the petrol pump for the respondent for the last 30 years and was given 10 awards declaring its dealership as the best petrol pump in the entire State of NCT Delhi. During this period, on a number of occasions, samples were tested by the respondent and were found to be as per specifications. 57. In the instant case, the haste in which 30 years old dealership was terminated even without giving show-cause notice and/or giving an opportunity of hearing clearly indicates that the entire exercise was carried out by the respondent Corporation non-existent, irrelevant and on extraneous considerations. There has been a total violation of the provisions of law and the principles of natural justice. Samples were collected in complete violation of the procedural laws and in non-adherence of the guidelines of the respondent Corporation.On consideration of the totality of the facts and circumstances of this case, it becomes imperative in the interest of justice to quash and set aside the termination order of the dealership. We, accordingly, quash the same. Consequently, we direct the respondent-Corporation to handover the possession of the petrol pump and restore the dealership of petrol pump to the appellant within three months from the date of this judgment. 58.
### Response:
1
### Explanation:
In the instant case, samples were taken on 15th May, 2000. On the very next day i.e. on 16th May, 2000, without even giving a show-cause notice and/or giving an opportunity of hearing, the respondent-Corporation terminated the dealership of the appellant. The appellant had been operating the petrol pump for the respondent for the last 30 years and was given 10 awards declaring its dealership as the best petrol pump in the entire State of NCT Delhi. During this period, on a number of occasions, samples were tested by the respondent and were found to be as per specifications.In the instant case, the haste in which 30 years old dealership was terminated even without giving show-cause notice and/or giving an opportunity of hearing clearly indicates that the entire exercise was carried out by the respondent Corporation non-existent, irrelevant and on extraneous considerations. There has been a total violation of the provisions of law and the principles of natural justice. Samples were collected in complete violation of the procedural laws and in non-adherence of the guidelines of the respondent Corporation.n consideration of the totality of the facts and circumstances of this case, it becomes imperative in the interest of justice to quash and set aside the termination order of the dealership. We, accordingly, quash the same. Consequently, we direct the respondent-Corporation to handover the possession of the petrol pump and restore the dealership of petrol pump to the appellant within three months from the date of this judgment.
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Anandilal and Another Vs. Ram Narain and Others
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view of the decision of the Privy Council in Kirtyanand Singh v. Prithi Chand Lal, these decisions were no longer good law. We find it difficult to accept the reasoning.The decision of the Privy Council in Kirtyanand Singhs case does not lay down any contrary proposition. There, the point appears to have arisen from an order passed by the Court in the Raj Suit to the effect that "the decree-holder were to wait for some time for payment". That order was subsequently set aside having been in operation for about seven months. The decree-holders contention was that they were entitled to the benefit of s. 15 (1) with respect to the aforesaid period of seven months. Lord Tomlin, delivering the judgment of the Judicial Committee, construed the aforesaid order as meaning not an order staying execution within s. 15 (1) of the Limitation Act, and observed:Now the first thing to be observed is that at the time when that order was made there was in fact no application for execution pending at all. It was an order again made in the Raj Suit and not in the rent suits; it was all order made on application by the decree-holders seeking leave to proceed against property in the hands of the receiver in the Raj suit. It was an order which did not stay at all, but simply said that so far as that application in that suit was concerned the appellants were to wait. That seems to their Lordships not to be in any sense within the meaning of the section a stay of the execution by injunction or order." (Emphasis supplied)5. In Lala Baijnath Prasad &Ors. v. Nursinghdas Gujrati the Calcutta High Court appears to have adopted a middle course, Chakravarti, C. J. delivering the judgment of the Court observed:"If the decree-holder is prevented altogether from executing his decree, it is but reasonable that time should not run against him so long as he remains disabled and the section says so. But there seems to be no reason why the section should be construed as meaning that even when the injunction or order is limited to one or some of several judgment-debtors or to one or some of their properties or to some particular mode of execution and even when the decree holder is left free to proceed against the other JUDGMENT-debtors or other properties or in other way, he will be entitled to the benefit of the section.The learned Chief Justice observed that in such a case the execution of the decree is not stayed but only execution in certain ways and against certain persons or properties is prevented, and then added."But assuming stayed include stayed in part, the utmost that can be claimed under the terms of the section is that if a decree-holder is restrained for a time from proceeding against some particular judgment-debtor or some particular property or in some particular way, and when the bar is lifted, he applies for execution against the same judgment debtor or the same property or in the same way, he will be entitled to exclude the period during which he remained i.e. strained."6. We feel that there is no, justification for placing a rigid construction on a beneficent provision like s. 15(1) of the Limitation Act. It is not necessary for us to go into the history of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the Code is controlled by 3. 15(1) of the Limitation Act. All that we need say is that both the enactments have throughout been treated as supplementary to each other, and concern with procedural law. It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. It ;9 plain on the terms of s. 15(1) that the word "execution" appearing in the collocation of words "the execution of which has keen stayed" must be construed in a liberal and broad sense . As observed by the Calcutta High Court in Sreenath Roys case, supra, the words "execution of the decree" mean the enforcement of the decree by what is known as "process of execution".Agreeing with the Full Bench, we are inclined to the view that the word "execution" in s. 15(1) embraces all the appropriate means by which a decree is enforced. Ot includes all process and proceeding in aid of, or supplemental to, execution. We find no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in s. 15(1). There is no reason why s .15 (1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or absolute stay o f execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit under s. 15(1) can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stay ed, the effect of such injunction or order is to prolong the life of the decree itself by the. period during which the injunction or order remained in force. The majority view to the contrary taken-by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue.7
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0[ds]We feel that there is no, justification for placing a rigid construction on a beneficent provision like s. 15(1) of the Limitation Act. It is not necessary for us to go into the history of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the Code is controlled by 3. 15(1) of the Limitation Act. All that we need say is that both the enactments have throughout been treated as supplementary to each other, and concern with procedural law. It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. It ;9 plain on the terms of s. 15(1) that the word "execution" appearing in the collocation of words "the execution of which has keen stayed" must be construed in a liberal and broad sense . As observed by the Calcutta High Court in Sreenath Roys case, supra, the words "execution of the decree" mean the enforcement of the decree by what is known as "process of execution".Agreeing with the Full Bench, we are inclined to the view that the word "execution" in s. 15(1) embraces all the appropriate means by which a decree is enforced. Ot includes all process and proceeding in aid of, or supplemental to, execution. We find no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in s. 15(1). There is no reason why s .15 (1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or absolute stay o f execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit under s. 15(1) can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stay ed, the effect of such injunction or order is to prolong the life of the decree itself by the. period during which the injunction or order remained in force. The majority view to the contrary taken-by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue.
| 0 | 3,017 | 545 |
### 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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view of the decision of the Privy Council in Kirtyanand Singh v. Prithi Chand Lal, these decisions were no longer good law. We find it difficult to accept the reasoning.The decision of the Privy Council in Kirtyanand Singhs case does not lay down any contrary proposition. There, the point appears to have arisen from an order passed by the Court in the Raj Suit to the effect that "the decree-holder were to wait for some time for payment". That order was subsequently set aside having been in operation for about seven months. The decree-holders contention was that they were entitled to the benefit of s. 15 (1) with respect to the aforesaid period of seven months. Lord Tomlin, delivering the judgment of the Judicial Committee, construed the aforesaid order as meaning not an order staying execution within s. 15 (1) of the Limitation Act, and observed:Now the first thing to be observed is that at the time when that order was made there was in fact no application for execution pending at all. It was an order again made in the Raj Suit and not in the rent suits; it was all order made on application by the decree-holders seeking leave to proceed against property in the hands of the receiver in the Raj suit. It was an order which did not stay at all, but simply said that so far as that application in that suit was concerned the appellants were to wait. That seems to their Lordships not to be in any sense within the meaning of the section a stay of the execution by injunction or order." (Emphasis supplied)5. In Lala Baijnath Prasad &Ors. v. Nursinghdas Gujrati the Calcutta High Court appears to have adopted a middle course, Chakravarti, C. J. delivering the judgment of the Court observed:"If the decree-holder is prevented altogether from executing his decree, it is but reasonable that time should not run against him so long as he remains disabled and the section says so. But there seems to be no reason why the section should be construed as meaning that even when the injunction or order is limited to one or some of several judgment-debtors or to one or some of their properties or to some particular mode of execution and even when the decree holder is left free to proceed against the other JUDGMENT-debtors or other properties or in other way, he will be entitled to the benefit of the section.The learned Chief Justice observed that in such a case the execution of the decree is not stayed but only execution in certain ways and against certain persons or properties is prevented, and then added."But assuming stayed include stayed in part, the utmost that can be claimed under the terms of the section is that if a decree-holder is restrained for a time from proceeding against some particular judgment-debtor or some particular property or in some particular way, and when the bar is lifted, he applies for execution against the same judgment debtor or the same property or in the same way, he will be entitled to exclude the period during which he remained i.e. strained."6. We feel that there is no, justification for placing a rigid construction on a beneficent provision like s. 15(1) of the Limitation Act. It is not necessary for us to go into the history of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the Code is controlled by 3. 15(1) of the Limitation Act. All that we need say is that both the enactments have throughout been treated as supplementary to each other, and concern with procedural law. It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. It ;9 plain on the terms of s. 15(1) that the word "execution" appearing in the collocation of words "the execution of which has keen stayed" must be construed in a liberal and broad sense . As observed by the Calcutta High Court in Sreenath Roys case, supra, the words "execution of the decree" mean the enforcement of the decree by what is known as "process of execution".Agreeing with the Full Bench, we are inclined to the view that the word "execution" in s. 15(1) embraces all the appropriate means by which a decree is enforced. Ot includes all process and proceeding in aid of, or supplemental to, execution. We find no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in s. 15(1). There is no reason why s .15 (1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or absolute stay o f execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit under s. 15(1) can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stay ed, the effect of such injunction or order is to prolong the life of the decree itself by the. period during which the injunction or order remained in force. The majority view to the contrary taken-by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue.7
### Response:
0
### Explanation:
We feel that there is no, justification for placing a rigid construction on a beneficent provision like s. 15(1) of the Limitation Act. It is not necessary for us to go into the history of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the Code is controlled by 3. 15(1) of the Limitation Act. All that we need say is that both the enactments have throughout been treated as supplementary to each other, and concern with procedural law. It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. It ;9 plain on the terms of s. 15(1) that the word "execution" appearing in the collocation of words "the execution of which has keen stayed" must be construed in a liberal and broad sense . As observed by the Calcutta High Court in Sreenath Roys case, supra, the words "execution of the decree" mean the enforcement of the decree by what is known as "process of execution".Agreeing with the Full Bench, we are inclined to the view that the word "execution" in s. 15(1) embraces all the appropriate means by which a decree is enforced. Ot includes all process and proceeding in aid of, or supplemental to, execution. We find no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in s. 15(1). There is no reason why s .15 (1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or absolute stay o f execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit under s. 15(1) can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stay ed, the effect of such injunction or order is to prolong the life of the decree itself by the. period during which the injunction or order remained in force. The majority view to the contrary taken-by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue.
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Estate Officer Ut Chandigarh Vs. M/S. Esys Information Technologies Pvt. Ltd
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respect to charge by Teledata Informatics Ltd., over the assets of M/s. Esys Singapore, it has been mentioned that general charge of Teledata remains. Following facts have been mentioned : "10. I have at paragraphs 16-17 of my 2nd Affidavit referred to Esys Global Holdings Ptd ("Esys Dubai") being prepared to buy certain of Esys Singapores subsidiaries at those subsidiariess book values/fair market value, without any pre-conditions. I expand on the circumstances of this offer below.11. Esys Dubai was prepared to buy over Esys Singapore shares in its subsidiaries, and make a loan to Esys Singapore up to the total value of about USD48m. However, Esys Dubai could only buy the subsidiaries once those subsidiaries had been properly valued, and any regulatory approvals required for the transfer of those shares had been obtained.x x x x x19. Teledata essentially recommended the same kind of restructuring for Esys Singapore to deal with its financial situation, in that it recommended a holding company to hold 100% of the shareholding in Esys Singapore. However, instead of proposing the issue of convertible bonds from the holding company like Credit Suisse, Teledata was prepared to invest directly in the holding company. Furthermore, Teledata was prepared to give Corporate Guarantees to Esys Singapores Suppliers and bankers, in return for a charge over Esys Singapores assets in order to keep Esys Singapore operating.x x x x x21. As part of the Teledata deal, and as previously set out in my 2nd Affidavit, I transferred all my shares in Esys Singapore and in Esys Holdings Pte Ltd (collectively referred to herein as "Consideration Shares") to Rainforest, and received Rainforest shares in return. On completion of the transaction, as set out in paragraph 29 of my 2nd Affidavit, I owned 58,888,000 shares in Rainforest (representing 49% of Rainforest) and Teledata owned 61,120,000 shares in Rainforest (representing 51% of Rainforest).22. Teledata paid valuable consideration to Rainforest to subscribe for its shares in Rainforest. All of Rainforests assets, including the subscription monies received from Teledata, and the Consideration Shares, are subject to the control of the Board of Rainforest, which is controlled by Teledata as the majority shareholder. As minority shareholder of Rainforest, I am certainly in no position to dissipate its assets." 12. A copy of Enterprise IT, 2008 has also been filed with rejoinder in which it has been reported that Teledata has acquired Esys. 13. In view of the aforesaid statement made in the affidavit of Mr. Vikas Goel, it is apparent that in spite of the clear direction made by this Court, the respondent has suppressed the facts with respect to its deal with M/s. Teledata Ltd. There is concealment of material facts by the respondent in spite of having been directed to disclose the full facts in the counter affidavit by specific order passed on 16.7.2015. It is apparent from the affidavit dated 2.7.2008 of Mr. Vikas Goel extracted above that in order to raise the fund to pay to its creditors, M/s. Esys Singapore considered its option to raise it through the sale of its assets and subsidiaries and M/s. Esys Global Holding Ltd. was prepared to buy subsidiaries including M/s. Esys India based on book value. It has been mentioned in para 17 that sale of its subsidiaries to M/s. Esys Global Holding meant that these liabilities were transferred to the buyer. Thus there is sale of assets and subsidiaries and the denial that there is no sale is incorrect statement. In the affidavit dated 24.7.2008 in paras 10 and 11, it is apparent that purchase by M/s. Esys Dubai of the assets of M/s. Esys Singapore and its subsidiaries after taking regulatory approvals which were required for transfer of shares. Thus, under the garb of transfer of shares, the respondents have completed the sale and is creating a screen to conceal this aspect. Deal with Teledata is also apparent from the aforesaid paras 19 to 21 of the affidavit of Mr. Vikas Goel. Unfortunately, the respondent has concealed the facts with respect to Teledata and has not come out with clean hands. It is also apparent that Teledata in its unaudited results has published that Teledata along with its subsidiary M/s. Esys Technologies is setting up a six acre TBO facility in Rajeev Gandhi Information Technology Park in Chandigarh. 14. In Juggilal Kamlapat v. Commissioner of Income-tax, U.P. AIR 1969 SC 932 , it has been laid down that the doctrine of lifting of corporate veil can be applied by court and it is entitled to lift the mask of corporate veil when it is used for perpetrating fraud or for evasion of tax. Corporate veil can also be lifted where promoters act in furtherance of their dishonest and fraudulent design as laid down in Jai Narain Parasrampuria (Dead) & Ors. v. Pushpa Devi Saraf & Ors. 2006 (7) SCC 756 , State of U.P. & Ors. v. Renusagar Power Co. & Ors. AIR 1988 SC 1737 . Lifting of the veil has been held to be permissible in Life Insurance Corporation of India v. Escorts Ltd. & Ors. AIR 1986 SC 1370 . In the instant case task is made easy as such facts on lifting veil are writ large from affidavits of respondent filed in Singapore High Court. 15. It is apparent that M/s. Esys Singapore has entered in such transactions with Dubai company and it appears prima facie from the affidavit of Mr. Vikas Goel and there was a further right created in favour of Teledata though dispute with Teledata has to be decided in pending cases. The provisions of Rule 9 of the Rules and Clause 15 of the allotment letter have been clearly violated. Thus, we are of the considered opinion that the order passed by the High Court is not sustainable and resumption of the allotted land by the appellant was legal and proper. The respondent is guilty of suppressio veri and suggestio falsi and has violated order dated 16.7.2015 passed by this Court as to disclosure.
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1[ds]15. It is apparent that M/s. Esys Singapore has entered in such transactions with Dubai company and it appears prima facie from the affidavit of Mr. Vikas Goel and there was a further right created in favour of Teledata though dispute with Teledata has to be decided in pending cases. The provisions of Rule 9 of the Rules and Clause 15 of the allotment letter have been clearly violated. Thus, we are of the considered opinion that the order passed by the High Court is not sustainable and resumption of the allotted land by the appellant was legal and proper. The respondent is guilty of suppressio veri and suggestio falsi and has violated order dated 16.7.2015 passed by this Court as to disclosure.
| 1 | 4,370 | 134 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
respect to charge by Teledata Informatics Ltd., over the assets of M/s. Esys Singapore, it has been mentioned that general charge of Teledata remains. Following facts have been mentioned : "10. I have at paragraphs 16-17 of my 2nd Affidavit referred to Esys Global Holdings Ptd ("Esys Dubai") being prepared to buy certain of Esys Singapores subsidiaries at those subsidiariess book values/fair market value, without any pre-conditions. I expand on the circumstances of this offer below.11. Esys Dubai was prepared to buy over Esys Singapore shares in its subsidiaries, and make a loan to Esys Singapore up to the total value of about USD48m. However, Esys Dubai could only buy the subsidiaries once those subsidiaries had been properly valued, and any regulatory approvals required for the transfer of those shares had been obtained.x x x x x19. Teledata essentially recommended the same kind of restructuring for Esys Singapore to deal with its financial situation, in that it recommended a holding company to hold 100% of the shareholding in Esys Singapore. However, instead of proposing the issue of convertible bonds from the holding company like Credit Suisse, Teledata was prepared to invest directly in the holding company. Furthermore, Teledata was prepared to give Corporate Guarantees to Esys Singapores Suppliers and bankers, in return for a charge over Esys Singapores assets in order to keep Esys Singapore operating.x x x x x21. As part of the Teledata deal, and as previously set out in my 2nd Affidavit, I transferred all my shares in Esys Singapore and in Esys Holdings Pte Ltd (collectively referred to herein as "Consideration Shares") to Rainforest, and received Rainforest shares in return. On completion of the transaction, as set out in paragraph 29 of my 2nd Affidavit, I owned 58,888,000 shares in Rainforest (representing 49% of Rainforest) and Teledata owned 61,120,000 shares in Rainforest (representing 51% of Rainforest).22. Teledata paid valuable consideration to Rainforest to subscribe for its shares in Rainforest. All of Rainforests assets, including the subscription monies received from Teledata, and the Consideration Shares, are subject to the control of the Board of Rainforest, which is controlled by Teledata as the majority shareholder. As minority shareholder of Rainforest, I am certainly in no position to dissipate its assets." 12. A copy of Enterprise IT, 2008 has also been filed with rejoinder in which it has been reported that Teledata has acquired Esys. 13. In view of the aforesaid statement made in the affidavit of Mr. Vikas Goel, it is apparent that in spite of the clear direction made by this Court, the respondent has suppressed the facts with respect to its deal with M/s. Teledata Ltd. There is concealment of material facts by the respondent in spite of having been directed to disclose the full facts in the counter affidavit by specific order passed on 16.7.2015. It is apparent from the affidavit dated 2.7.2008 of Mr. Vikas Goel extracted above that in order to raise the fund to pay to its creditors, M/s. Esys Singapore considered its option to raise it through the sale of its assets and subsidiaries and M/s. Esys Global Holding Ltd. was prepared to buy subsidiaries including M/s. Esys India based on book value. It has been mentioned in para 17 that sale of its subsidiaries to M/s. Esys Global Holding meant that these liabilities were transferred to the buyer. Thus there is sale of assets and subsidiaries and the denial that there is no sale is incorrect statement. In the affidavit dated 24.7.2008 in paras 10 and 11, it is apparent that purchase by M/s. Esys Dubai of the assets of M/s. Esys Singapore and its subsidiaries after taking regulatory approvals which were required for transfer of shares. Thus, under the garb of transfer of shares, the respondents have completed the sale and is creating a screen to conceal this aspect. Deal with Teledata is also apparent from the aforesaid paras 19 to 21 of the affidavit of Mr. Vikas Goel. Unfortunately, the respondent has concealed the facts with respect to Teledata and has not come out with clean hands. It is also apparent that Teledata in its unaudited results has published that Teledata along with its subsidiary M/s. Esys Technologies is setting up a six acre TBO facility in Rajeev Gandhi Information Technology Park in Chandigarh. 14. In Juggilal Kamlapat v. Commissioner of Income-tax, U.P. AIR 1969 SC 932 , it has been laid down that the doctrine of lifting of corporate veil can be applied by court and it is entitled to lift the mask of corporate veil when it is used for perpetrating fraud or for evasion of tax. Corporate veil can also be lifted where promoters act in furtherance of their dishonest and fraudulent design as laid down in Jai Narain Parasrampuria (Dead) & Ors. v. Pushpa Devi Saraf & Ors. 2006 (7) SCC 756 , State of U.P. & Ors. v. Renusagar Power Co. & Ors. AIR 1988 SC 1737 . Lifting of the veil has been held to be permissible in Life Insurance Corporation of India v. Escorts Ltd. & Ors. AIR 1986 SC 1370 . In the instant case task is made easy as such facts on lifting veil are writ large from affidavits of respondent filed in Singapore High Court. 15. It is apparent that M/s. Esys Singapore has entered in such transactions with Dubai company and it appears prima facie from the affidavit of Mr. Vikas Goel and there was a further right created in favour of Teledata though dispute with Teledata has to be decided in pending cases. The provisions of Rule 9 of the Rules and Clause 15 of the allotment letter have been clearly violated. Thus, we are of the considered opinion that the order passed by the High Court is not sustainable and resumption of the allotted land by the appellant was legal and proper. The respondent is guilty of suppressio veri and suggestio falsi and has violated order dated 16.7.2015 passed by this Court as to disclosure.
### Response:
1
### Explanation:
15. It is apparent that M/s. Esys Singapore has entered in such transactions with Dubai company and it appears prima facie from the affidavit of Mr. Vikas Goel and there was a further right created in favour of Teledata though dispute with Teledata has to be decided in pending cases. The provisions of Rule 9 of the Rules and Clause 15 of the allotment letter have been clearly violated. Thus, we are of the considered opinion that the order passed by the High Court is not sustainable and resumption of the allotted land by the appellant was legal and proper. The respondent is guilty of suppressio veri and suggestio falsi and has violated order dated 16.7.2015 passed by this Court as to disclosure.
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Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh
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Singh) and for amendment of the description of appellant No.2 by substitution of the words Working President for Former President as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC. 19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to an on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as it former President. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate Court as validly executed by the appellants, the landlords objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant - DCC, to rectify the defect. 20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his collagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation (c), even without a separate vakalatnama for the appeal. 21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer an the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation. It should, therefore, be properly filled / attested / accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :- (a) Failure to mention the names of the persons/ executing the Vakalatnama, and leaving the relevant column blank; (b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatanama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama). (c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance. (d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama. (e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel). (f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/ statement that the signature is for self and as guardian of his minor children. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its of office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in her/ her personal capacity and as the person authorized to sign on behalf of the corporate body / firm/ society / orgnisation. (g) Where the Vakalatnama is executed by a power of attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney. (h) Where several persons sign a single vakalatnama, failure to affix the signature seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls); (i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader). We have referred to the above routine defects, as Registries/Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries / Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may.
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0[ds]14. In so far as the decision in Sheikh Palat (supra) relied on by the appellant-landlord, we find that the said decision is not of much assistance to the appellant as the decision itself clarifies that it may not be necessary to file a Vakalatnama with the petition of appeal, but it is certainly necessary that there should be at the time of presentation of the appeal, a Vakalatnama in existence bearing the signature of the appellant or his attorney15. It is, thus, now well-settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office18. We will now examine the facts of this case with reference to the aforesaid principles A. N. Singh and DCC (by its President A.N. Singh) were the defendants in the eviction suit and they were represented in the trial court by their counsel Shri Bindeshwar Prasad Singh and his colleagues. The cause-title of the memorandum of appeal against the eviction suit shows that there were two appellants-A.N. Singh and DCC. It is evident from the subsequent application for substitution that DCC was aware of the filing of the appeal. The memorandum of appeal was signed by Shri Umesh Chandra Kumar, Advocate, colleague of Shri Bindeshwar Prasad Singh. It was accompanied by a vakalatnama executed by A.N. Singh in favour of Shri Bindeshwar Prasad Singh and his colleagues including Shri Umesh Chandra Kumar. The office report on examination of the memorandum of appeal did not refer to any defect relating to absence of any vakalatnama by DCC. It is apparent that the appellants counsel and the District Court office proceeded on the basis that A.N. Singh was representing himself and the DCC as its former President. Only when A.N. Singh died and the working President of DCC filed an application for deletion of appellant No.1 (A.N. Singh) and for amendment of the description of appellant No.2 by substitution of the words Working President for Former President as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to an on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as it former President. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate Court as validly executed by the appellants, the landlords objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant - DCC, to rectify the defect20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his collagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation (c), even without a separate vakalatnama for the appeal21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer an the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation. It should, therefore, be properly filled / attested / accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :-(a) Failure to mention the names of the persons/ executing the Vakalatnama, and leaving the relevant column blank;(b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatanama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama)(c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance(d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama(e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel)(f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/ statement that the signature is for self and as guardian of his minor children. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its of office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in her/ her personal capacity and as the person authorized to sign on behalf of the corporate body / firm/ society / orgnisation(g) Where the Vakalatnama is executed by a power of attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney(h) Where several persons sign a single vakalatnama, failure to affix the signature seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls);(i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader)We have referred to the above routine defects, as Registries/Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries / Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may
| 0 | 4,765 | 1,839 |
### 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:
Singh) and for amendment of the description of appellant No.2 by substitution of the words Working President for Former President as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC. 19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to an on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as it former President. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate Court as validly executed by the appellants, the landlords objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant - DCC, to rectify the defect. 20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his collagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation (c), even without a separate vakalatnama for the appeal. 21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer an the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation. It should, therefore, be properly filled / attested / accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :- (a) Failure to mention the names of the persons/ executing the Vakalatnama, and leaving the relevant column blank; (b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatanama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama). (c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance. (d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama. (e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel). (f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/ statement that the signature is for self and as guardian of his minor children. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its of office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in her/ her personal capacity and as the person authorized to sign on behalf of the corporate body / firm/ society / orgnisation. (g) Where the Vakalatnama is executed by a power of attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney. (h) Where several persons sign a single vakalatnama, failure to affix the signature seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls); (i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader). We have referred to the above routine defects, as Registries/Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries / Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may.
### Response:
0
### Explanation:
working President of DCC filed an application for deletion of appellant No.1 (A.N. Singh) and for amendment of the description of appellant No.2 by substitution of the words Working President for Former President as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to an on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as it former President. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate Court as validly executed by the appellants, the landlords objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant - DCC, to rectify the defect20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his collagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation (c), even without a separate vakalatnama for the appeal21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer an the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation. It should, therefore, be properly filled / attested / accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :-(a) Failure to mention the names of the persons/ executing the Vakalatnama, and leaving the relevant column blank;(b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatanama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama)(c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance(d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama(e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel)(f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/ statement that the signature is for self and as guardian of his minor children. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its of office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in her/ her personal capacity and as the person authorized to sign on behalf of the corporate body / firm/ society / orgnisation(g) Where the Vakalatnama is executed by a power of attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney(h) Where several persons sign a single vakalatnama, failure to affix the signature seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls);(i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader)We have referred to the above routine defects, as Registries/Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries / Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may
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M/s. R.S. Infra-Transmission Ltd Vs. Saurinindubhai Patel and Ors
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debtor deposited the substantial amount of Rs. 1,27,30,527/- and other amounts due and payable under Rule 60 including the penalty and the interest, there was no reason for the judgment debtor not to deposit Rs. 3,57,647/- which is a very small amount as against the amount deposited. At this stage, it is required to be noted that though the Bank filed its reply before the Recovery Officer in response to the application made by the judgment debtor - borrower made under Rule 60 and in which it was stated that there was some shortfall in the amount deposited, but according to the judgment debtor, no calculation sheet was attached to the reply and/or supplied to the judgment debtor. 6.2 At the time of hearing of the application under Rule 60 on 09.02.2007, a grievance was made before the Recovery Officer as to why the Bank had not served a copy of the calculation sheet and in the meantime, the judgment debtor had himself deposited a further sum of Rs.2.80 lakhs towards the difference in calculation, if any. The Recovery Officer directed the Bank to supply the calculation sheet and the Bank submitted the calculation sheet before the Recovery Officer on 12.02.2007 and on that day, a sum of Rs.77,647/- was the shortfall, which the judgment debtor deposited on the very next day, i.e., on 13.02.2007. If the Bank would have submitted the calculation sheet earlier alongwith the reply on 06.02.2007, which was 29th day from the date of auction, the judgment debtor would have deposited the balance shortfall amount. Therefore, in the facts and circumstances of the case, it can be said that there was a substantial compliance/ compliance of Rule 60. If the Recovery Officer would have been accurate in submitting the exact amount in the sale proclamation due and payable on the date of sale proclamation then the eventuality which has arisen in the present case would not have arisen. There was an absurd misconduct on the part of the Recovery Officer for which the judgment debtor should not be made to suffer. 6.3 At this stage, it is required to be noted that the right available to the judgment debtor under Rule 60 is a valuable right and the last resort/opportunity to the judgment debtor to save his property. It is a right available to the judgment debtor after his property is sold in a court auction. Therefore, such a valuable right available to the judgment debtor to save his property should not be affected on the technical ground and/or for the mistake and/or the bona fide mistake for which he was not at all responsible. 6.4 The legislative intent of Rule 60 has been dealt with and considered in detail by the Bombay High Court in the case of Hotel Paras Garden, Balapur & Anr. (supra). In the aforesaid case, it is observed that the legislative intent of Rule 60 is to give the defaulter as much latitude as possible till the end and he can, under Rule 60, without assigning any cause but after depositing the sum therein mentioned as mentioned in the sale proclamation within the stipulated time, avoid the auction and protect his property. Thus, the right which is available to the judgment debtor under Rule 60 is a most valuable right available and the same shall not be permitted to be affected on the technical ground and/or bona fide mistake for which he cannot be said to be at fault. 6.5 Now, so far as the submission on behalf of respondent Nos. 1 and 2 that according to the Bank, a sum of Rs.4.63 lakhs was the balance amount due and payable against which even subsequently the borrower has deposited Rs. 3,57,647/- and therefore, still there is a shortfall is concerned, the aforesaid has no substance. At this stage, it is required to be noted that on deposit of the aforesaid amount of Rs. 3,5,7647/-, (i.e., Rs.2,80,000/- + Rs.77,647/-) as on 13.02.2007, the Recovery Officer directed the Bank to hand over the original documents pertaining to the impugned properties and file compliance affidavit and thereafter the Bank was allowed to appropriate the decretal amount deposited by the judgment debtor and that on 19.02.2007 itself, the Bank complied with the order passed by the Recovery Officer dated 15.02.2007 and handed back to the judgment debtor the documents pertaining to the properties in question and requested to release the amount deposited, which came to be allowed by the Recovery Officer. At that time, no dispute was raised by the Bank that any further amount was due and payable. The Bank was satisfied with the deposit of the amount by the judgment debtor. 7. In view of the above discussion and for the reasons stated above, the High Court has committed a grave/serious error in quashing and setting aside the order passed by the DRAT and the Recovery Officer by which the Recovery Officer and the DRAT set aside the sale in favour of the auction purchasers. The view taken by the High Court is too technical. The High Court has not at all considered the facts narrated hereinabove in its true perspective. The High Court has not at all appreciated and considered the fact that for the inaccuracy and/or mistake on the part of the Recovery Officer, the judgment debtor cannot be made to suffer for no fault of his. The High Court has also not properly appreciated and considered the valuable right available to the judgment debtor under Rule 60. As observed and held hereinabove, when the substantial amount was deposited, there was no reason for the judgment debtor not to deposit the shortfall, which as such can be said to be very meagre amount. As and when the judgment debtor was made aware about the shortfall, immediately, the shortfall amount has been deposited by the judgment debtor. Under the circumstances, the impugned judgment and order passed by the High court is unsustainable and the same deserves to be quashed and set aside.
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1[ds]6.2 At the time of hearing of the application under Rule 60 on 09.02.2007, a grievance was made before the Recovery Officer as to why the Bank had not served a copy of the calculation sheet and in the meantime, the judgment debtor had himself deposited a further sum of Rs.2.80 lakhs towards the difference in calculation, if any. The Recovery Officer directed the Bank to supply the calculation sheet and the Bank submitted the calculation sheet before the Recovery Officer on 12.02.2007 and on that day, a sum of Rs.77,647/- was the shortfall, which the judgment debtor deposited on the very next day, i.e., on 13.02.2007. If the Bank would have submitted the calculation sheet earlier alongwith the reply on 06.02.2007, which was 29th day from the date of auction, the judgment debtor would have deposited the balance shortfall amount. Therefore, in the facts and circumstances of the case, it can be said that there was a substantial compliance/ compliance of Rule 60. If the Recovery Officer would have been accurate in submitting the exact amount in the sale proclamation due and payable on the date of sale proclamation then the eventuality which has arisen in the present case would not have arisen. There was an absurd misconduct on the part of the Recovery Officer for which the judgment debtor should not be made to suffer.6.3 At this stage, it is required to be noted that the right available to the judgment debtor under Rule 60 is a valuable right and the last resort/opportunity to the judgment debtor to save his property. It is a right available to the judgment debtor after his property is sold in a court auction. Therefore, such a valuable right available to the judgment debtor to save his property should not be affected on the technical ground and/or for the mistake and/or the bona fide mistake for which he was not at all responsible.6.4 The legislative intent of Rule 60 has been dealt with and considered in detail by the Bombay High Court in the case of Hotel Paras Garden, Balapur & Anr. (supra). In the aforesaid case, it is observed that the legislative intent of Rule 60 is to give the defaulter as much latitude as possible till the end and he can, under Rule 60, without assigning any cause but after depositing the sum therein mentioned as mentioned in the sale proclamation within the stipulated time, avoid the auction and protect his property. Thus, the right which is available to the judgment debtor under Rule 60 is a most valuable right available and the same shall not be permitted to be affected on the technical ground and/or bona fide mistake for which he cannot be said to be at fault.6.5 Now, so far as the submission on behalf of respondent Nos. 1 and 2 that according to the Bank, a sum of Rs.4.63 lakhs was the balance amount due and payable against which even subsequently the borrower has deposited Rs. 3,57,647/- and therefore, still there is a shortfall is concerned, the aforesaid has no substance. At this stage, it is required to be noted that on deposit of the aforesaid amount of Rs. 3,5,7647/-, (i.e., Rs.2,80,000/- + Rs.77,647/-) as on 13.02.2007, the Recovery Officer directed the Bank to hand over the original documents pertaining to the impugned properties and file compliance affidavit and thereafter the Bank was allowed to appropriate the decretal amount deposited by the judgment debtor and that on 19.02.2007 itself, the Bank complied with the order passed by the Recovery Officer dated 15.02.2007 and handed back to the judgment debtor the documents pertaining to the properties in question and requested to release the amount deposited, which came to be allowed by the Recovery Officer. At that time, no dispute was raised by the Bank that any further amount was due and payable. The Bank was satisfied with the deposit of the amount by the judgment debtor.7. In view of the above discussion and for the reasons stated above, the High Court has committed a grave/serious error in quashing and setting aside the order passed by the DRAT and the Recovery Officer by which the Recovery Officer and the DRAT set aside the sale in favour of the auction purchasers. The view taken by the High Court is too technical. The High Court has not at all considered the facts narrated hereinabove in its true perspective. The High Court has not at all appreciated and considered the fact that for the inaccuracy and/or mistake on the part of the Recovery Officer, the judgment debtor cannot be made to suffer for no fault of his. The High Court has also not properly appreciated and considered the valuable right available to the judgment debtor under Rule 60. As observed and held hereinabove, when the substantial amount was deposited, there was no reason for the judgment debtor not to deposit the shortfall, which as such can be said to be very meagre amount. As and when the judgment debtor was made aware about the shortfall, immediately, the shortfall amount has been deposited by the judgment debtor.Under the circumstances, the impugned judgment and order passed by the High court is unsustainable and the same deserves to be quashed and set aside.
| 1 | 6,031 | 949 |
### 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:
debtor deposited the substantial amount of Rs. 1,27,30,527/- and other amounts due and payable under Rule 60 including the penalty and the interest, there was no reason for the judgment debtor not to deposit Rs. 3,57,647/- which is a very small amount as against the amount deposited. At this stage, it is required to be noted that though the Bank filed its reply before the Recovery Officer in response to the application made by the judgment debtor - borrower made under Rule 60 and in which it was stated that there was some shortfall in the amount deposited, but according to the judgment debtor, no calculation sheet was attached to the reply and/or supplied to the judgment debtor. 6.2 At the time of hearing of the application under Rule 60 on 09.02.2007, a grievance was made before the Recovery Officer as to why the Bank had not served a copy of the calculation sheet and in the meantime, the judgment debtor had himself deposited a further sum of Rs.2.80 lakhs towards the difference in calculation, if any. The Recovery Officer directed the Bank to supply the calculation sheet and the Bank submitted the calculation sheet before the Recovery Officer on 12.02.2007 and on that day, a sum of Rs.77,647/- was the shortfall, which the judgment debtor deposited on the very next day, i.e., on 13.02.2007. If the Bank would have submitted the calculation sheet earlier alongwith the reply on 06.02.2007, which was 29th day from the date of auction, the judgment debtor would have deposited the balance shortfall amount. Therefore, in the facts and circumstances of the case, it can be said that there was a substantial compliance/ compliance of Rule 60. If the Recovery Officer would have been accurate in submitting the exact amount in the sale proclamation due and payable on the date of sale proclamation then the eventuality which has arisen in the present case would not have arisen. There was an absurd misconduct on the part of the Recovery Officer for which the judgment debtor should not be made to suffer. 6.3 At this stage, it is required to be noted that the right available to the judgment debtor under Rule 60 is a valuable right and the last resort/opportunity to the judgment debtor to save his property. It is a right available to the judgment debtor after his property is sold in a court auction. Therefore, such a valuable right available to the judgment debtor to save his property should not be affected on the technical ground and/or for the mistake and/or the bona fide mistake for which he was not at all responsible. 6.4 The legislative intent of Rule 60 has been dealt with and considered in detail by the Bombay High Court in the case of Hotel Paras Garden, Balapur & Anr. (supra). In the aforesaid case, it is observed that the legislative intent of Rule 60 is to give the defaulter as much latitude as possible till the end and he can, under Rule 60, without assigning any cause but after depositing the sum therein mentioned as mentioned in the sale proclamation within the stipulated time, avoid the auction and protect his property. Thus, the right which is available to the judgment debtor under Rule 60 is a most valuable right available and the same shall not be permitted to be affected on the technical ground and/or bona fide mistake for which he cannot be said to be at fault. 6.5 Now, so far as the submission on behalf of respondent Nos. 1 and 2 that according to the Bank, a sum of Rs.4.63 lakhs was the balance amount due and payable against which even subsequently the borrower has deposited Rs. 3,57,647/- and therefore, still there is a shortfall is concerned, the aforesaid has no substance. At this stage, it is required to be noted that on deposit of the aforesaid amount of Rs. 3,5,7647/-, (i.e., Rs.2,80,000/- + Rs.77,647/-) as on 13.02.2007, the Recovery Officer directed the Bank to hand over the original documents pertaining to the impugned properties and file compliance affidavit and thereafter the Bank was allowed to appropriate the decretal amount deposited by the judgment debtor and that on 19.02.2007 itself, the Bank complied with the order passed by the Recovery Officer dated 15.02.2007 and handed back to the judgment debtor the documents pertaining to the properties in question and requested to release the amount deposited, which came to be allowed by the Recovery Officer. At that time, no dispute was raised by the Bank that any further amount was due and payable. The Bank was satisfied with the deposit of the amount by the judgment debtor. 7. In view of the above discussion and for the reasons stated above, the High Court has committed a grave/serious error in quashing and setting aside the order passed by the DRAT and the Recovery Officer by which the Recovery Officer and the DRAT set aside the sale in favour of the auction purchasers. The view taken by the High Court is too technical. The High Court has not at all considered the facts narrated hereinabove in its true perspective. The High Court has not at all appreciated and considered the fact that for the inaccuracy and/or mistake on the part of the Recovery Officer, the judgment debtor cannot be made to suffer for no fault of his. The High Court has also not properly appreciated and considered the valuable right available to the judgment debtor under Rule 60. As observed and held hereinabove, when the substantial amount was deposited, there was no reason for the judgment debtor not to deposit the shortfall, which as such can be said to be very meagre amount. As and when the judgment debtor was made aware about the shortfall, immediately, the shortfall amount has been deposited by the judgment debtor. Under the circumstances, the impugned judgment and order passed by the High court is unsustainable and the same deserves to be quashed and set aside.
### Response:
1
### Explanation:
6.2 At the time of hearing of the application under Rule 60 on 09.02.2007, a grievance was made before the Recovery Officer as to why the Bank had not served a copy of the calculation sheet and in the meantime, the judgment debtor had himself deposited a further sum of Rs.2.80 lakhs towards the difference in calculation, if any. The Recovery Officer directed the Bank to supply the calculation sheet and the Bank submitted the calculation sheet before the Recovery Officer on 12.02.2007 and on that day, a sum of Rs.77,647/- was the shortfall, which the judgment debtor deposited on the very next day, i.e., on 13.02.2007. If the Bank would have submitted the calculation sheet earlier alongwith the reply on 06.02.2007, which was 29th day from the date of auction, the judgment debtor would have deposited the balance shortfall amount. Therefore, in the facts and circumstances of the case, it can be said that there was a substantial compliance/ compliance of Rule 60. If the Recovery Officer would have been accurate in submitting the exact amount in the sale proclamation due and payable on the date of sale proclamation then the eventuality which has arisen in the present case would not have arisen. There was an absurd misconduct on the part of the Recovery Officer for which the judgment debtor should not be made to suffer.6.3 At this stage, it is required to be noted that the right available to the judgment debtor under Rule 60 is a valuable right and the last resort/opportunity to the judgment debtor to save his property. It is a right available to the judgment debtor after his property is sold in a court auction. Therefore, such a valuable right available to the judgment debtor to save his property should not be affected on the technical ground and/or for the mistake and/or the bona fide mistake for which he was not at all responsible.6.4 The legislative intent of Rule 60 has been dealt with and considered in detail by the Bombay High Court in the case of Hotel Paras Garden, Balapur & Anr. (supra). In the aforesaid case, it is observed that the legislative intent of Rule 60 is to give the defaulter as much latitude as possible till the end and he can, under Rule 60, without assigning any cause but after depositing the sum therein mentioned as mentioned in the sale proclamation within the stipulated time, avoid the auction and protect his property. Thus, the right which is available to the judgment debtor under Rule 60 is a most valuable right available and the same shall not be permitted to be affected on the technical ground and/or bona fide mistake for which he cannot be said to be at fault.6.5 Now, so far as the submission on behalf of respondent Nos. 1 and 2 that according to the Bank, a sum of Rs.4.63 lakhs was the balance amount due and payable against which even subsequently the borrower has deposited Rs. 3,57,647/- and therefore, still there is a shortfall is concerned, the aforesaid has no substance. At this stage, it is required to be noted that on deposit of the aforesaid amount of Rs. 3,5,7647/-, (i.e., Rs.2,80,000/- + Rs.77,647/-) as on 13.02.2007, the Recovery Officer directed the Bank to hand over the original documents pertaining to the impugned properties and file compliance affidavit and thereafter the Bank was allowed to appropriate the decretal amount deposited by the judgment debtor and that on 19.02.2007 itself, the Bank complied with the order passed by the Recovery Officer dated 15.02.2007 and handed back to the judgment debtor the documents pertaining to the properties in question and requested to release the amount deposited, which came to be allowed by the Recovery Officer. At that time, no dispute was raised by the Bank that any further amount was due and payable. The Bank was satisfied with the deposit of the amount by the judgment debtor.7. In view of the above discussion and for the reasons stated above, the High Court has committed a grave/serious error in quashing and setting aside the order passed by the DRAT and the Recovery Officer by which the Recovery Officer and the DRAT set aside the sale in favour of the auction purchasers. The view taken by the High Court is too technical. The High Court has not at all considered the facts narrated hereinabove in its true perspective. The High Court has not at all appreciated and considered the fact that for the inaccuracy and/or mistake on the part of the Recovery Officer, the judgment debtor cannot be made to suffer for no fault of his. The High Court has also not properly appreciated and considered the valuable right available to the judgment debtor under Rule 60. As observed and held hereinabove, when the substantial amount was deposited, there was no reason for the judgment debtor not to deposit the shortfall, which as such can be said to be very meagre amount. As and when the judgment debtor was made aware about the shortfall, immediately, the shortfall amount has been deposited by the judgment debtor.Under the circumstances, the impugned judgment and order passed by the High court is unsustainable and the same deserves to be quashed and set aside.
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BHIMABAI MAHADEO KAMBEKAR (DEAD) THR. LRS Vs. ARTHUR IMPORT & EXPORT CO
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Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 30.09.2011 passed by the High Court of Judicature at Bombay in Writ Petition No.6235 of 2011 whereby the Single Judge of the High Court dismissed the writ petition filed by the appellants herein. 3. Few facts need mention infra to appreciate the short controversy involved in this appeal. 4. The dispute, which has reached to this Court in this appeal at the instance of one party to such dispute, arises out of and relates to the entries made in the revenue records in relation to the disputed land. 5. The dispute began from the Court of Superintendent of land records. Thereafter it reached to the Deputy Director of Land Records in appeal. It then reached to the State in revision and lastly, in the High Court in writ petition resulting in passing the impugned order which has given rise to filing of the present appeal by way of special leave in this Court by the appellants. 6. Heard learned counsel for the parties. 7. The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court. 8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6 SCC 223 , Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591 ). 9. The High Court while dismissing the writ petition placed reliance on the aforementioned law laid down by this Court and we find no good ground to differ with the reasoning and the conclusion arrived at by the High Court. It is just and proper calling for no interference. 10. It is not in dispute that the civil suits in relation to the land in question are pending in the Courts between the parties. Therefore, it would not be proper to embark upon any factual inquiries into the question as to whether the entries were properly made or not and at whose instance they were made etc. in this appeal. It is more so when they neither decide the title nor extinguish the title of the parties in relation to the land.
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0[ds]7. The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court.This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6 SCC 223 , Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591 ).The High Court while dismissing the writ petition placed reliance on the aforementioned law laid down by this Court and we find no good ground to differ with the reasoning and the conclusion arrived at by the High Court. It is just and proper calling for no interference.It is not in dispute that the civil suits in relation to the land in question are pending in the Courts between the parties. Therefore, it would not be proper to embark upon any factual inquiries into the question as to whether the entries were properly made or not and at whose instance they were made etc. in this appeal. It is more so when they neither decide the title nor extinguish the title of the parties in relation to the land.
| 0 | 501 | 293 |
### 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:
Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 30.09.2011 passed by the High Court of Judicature at Bombay in Writ Petition No.6235 of 2011 whereby the Single Judge of the High Court dismissed the writ petition filed by the appellants herein. 3. Few facts need mention infra to appreciate the short controversy involved in this appeal. 4. The dispute, which has reached to this Court in this appeal at the instance of one party to such dispute, arises out of and relates to the entries made in the revenue records in relation to the disputed land. 5. The dispute began from the Court of Superintendent of land records. Thereafter it reached to the Deputy Director of Land Records in appeal. It then reached to the State in revision and lastly, in the High Court in writ petition resulting in passing the impugned order which has given rise to filing of the present appeal by way of special leave in this Court by the appellants. 6. Heard learned counsel for the parties. 7. The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court. 8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6 SCC 223 , Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591 ). 9. The High Court while dismissing the writ petition placed reliance on the aforementioned law laid down by this Court and we find no good ground to differ with the reasoning and the conclusion arrived at by the High Court. It is just and proper calling for no interference. 10. It is not in dispute that the civil suits in relation to the land in question are pending in the Courts between the parties. Therefore, it would not be proper to embark upon any factual inquiries into the question as to whether the entries were properly made or not and at whose instance they were made etc. in this appeal. It is more so when they neither decide the title nor extinguish the title of the parties in relation to the land.
### Response:
0
### Explanation:
7. The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court.This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6 SCC 223 , Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591 ).The High Court while dismissing the writ petition placed reliance on the aforementioned law laid down by this Court and we find no good ground to differ with the reasoning and the conclusion arrived at by the High Court. It is just and proper calling for no interference.It is not in dispute that the civil suits in relation to the land in question are pending in the Courts between the parties. Therefore, it would not be proper to embark upon any factual inquiries into the question as to whether the entries were properly made or not and at whose instance they were made etc. in this appeal. It is more so when they neither decide the title nor extinguish the title of the parties in relation to the land.
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COMMISSIONER OF INCOME TAX JAIPUR Vs. M/S GOPAL SHRI SCRIPS PVT LTD
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Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is filed against the final judgment and order dated 09.08.2016 passed by the High Court of Judicature for Rajasthan at Jaipur in DBITA No.53 of 2000 whereby the High Court dismissed the appeal as having become infructuous filed by the appellant herein. 3. The appeal involves a short question as would be clear from the facts stated infra. 4. The appellant is the Union of India¬Income Tax Department. The respondent is the assessee in the appeal out of which this appeal arises.5. The appellant herein filed an appeal under Section 260¬A of the Income Tax Act, 1961(hereinafter referred to as “the Act”) in the High Court of Rajasthan (Jaipur bench) against the order dated 28.04.2000 of Income Tax Appellate Tribunal (ITAT) in ITA No 226/JP/1999.6. By impugned order, the High Court dismissed the appeal as having rendered infructuous giving rise to filing of this appeal by way of special leave by the Income Tax Department in this Court.The impugned order reads as under: "On the last date of hearing when the matter cam up before the Court on 05.07.2016, counsel for the appellant was directed to seek instructions about the present status of the Respondent¬assessee (Company) whether it is in existence or has become non operational or defunct by passage of time.Sh. Anuroop Singhi, Adv., appearing for the appellant has placed for our perusal a communication issued from the office of Registrar of Companies dated 07.04.2011 indicating that pursuant to sub¬section(5) of Section 560 of the Companies Act, 1956 the name of Gopal Shri Scrips Pvt. Ltd., has been struck off from the register and the said company is dissolved.In the light of the communication placed for our perusal dated 07.04.2011, no purpose is going to be served in examining the substantial question of law which has been raised for consideration in the instant appeal and on account of these change in circumstances, the present appeal has become infructuous and accordingly stands dismissed. However, the appellant is still at liberty to file application if any occasion arises in future.” 7. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appeal filed by the Income Tax Department on the ground that it has rendered infructuous. 8. Mr. A.N.S. Nadkarni, learned ASG appeared for the appellant. None appeared for the respondent (assessee) though served. 9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.
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1[ds]9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.
| 1 | 825 | 373 |
### 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:
Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is filed against the final judgment and order dated 09.08.2016 passed by the High Court of Judicature for Rajasthan at Jaipur in DBITA No.53 of 2000 whereby the High Court dismissed the appeal as having become infructuous filed by the appellant herein. 3. The appeal involves a short question as would be clear from the facts stated infra. 4. The appellant is the Union of India¬Income Tax Department. The respondent is the assessee in the appeal out of which this appeal arises.5. The appellant herein filed an appeal under Section 260¬A of the Income Tax Act, 1961(hereinafter referred to as “the Act”) in the High Court of Rajasthan (Jaipur bench) against the order dated 28.04.2000 of Income Tax Appellate Tribunal (ITAT) in ITA No 226/JP/1999.6. By impugned order, the High Court dismissed the appeal as having rendered infructuous giving rise to filing of this appeal by way of special leave by the Income Tax Department in this Court.The impugned order reads as under: "On the last date of hearing when the matter cam up before the Court on 05.07.2016, counsel for the appellant was directed to seek instructions about the present status of the Respondent¬assessee (Company) whether it is in existence or has become non operational or defunct by passage of time.Sh. Anuroop Singhi, Adv., appearing for the appellant has placed for our perusal a communication issued from the office of Registrar of Companies dated 07.04.2011 indicating that pursuant to sub¬section(5) of Section 560 of the Companies Act, 1956 the name of Gopal Shri Scrips Pvt. Ltd., has been struck off from the register and the said company is dissolved.In the light of the communication placed for our perusal dated 07.04.2011, no purpose is going to be served in examining the substantial question of law which has been raised for consideration in the instant appeal and on account of these change in circumstances, the present appeal has become infructuous and accordingly stands dismissed. However, the appellant is still at liberty to file application if any occasion arises in future.” 7. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appeal filed by the Income Tax Department on the ground that it has rendered infructuous. 8. Mr. A.N.S. Nadkarni, learned ASG appeared for the appellant. None appeared for the respondent (assessee) though served. 9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.
### Response:
1
### Explanation:
9. Having heard the learned counsel for the appellant (Income Tax Department) and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.10. Mere perusal of the impugned order quoted supra would go to show that the High Court dismissed the appeal on the ground that it has rendered infructuous because it was brought to its notice that the name of the company¬ the respondent¬assessee has been struck off from the Register of the Company under Section 560(5) of the Companies Act, 1956.11. In other words, the High Court was of the view that since the respondent¬Company stands dissolved as a result of the order passed by the Registrar of the Companies under Section 560 (5) of the Companies Act, the appeal filed against such Company which stands dissolved does not survive for its consideration on merits.12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous.13. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution".14. The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act.15. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with.16. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.
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Man Kaur(Dead)By Lrs Vs. Hartar Singh Sangha
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in my presence (objected to). In the plaint, the incident is described thus : "Ultimately, the general attorney of the Defendant namely Kartar Singh reached Chandigarh on 7.6.1979 and the plaintiff was also there in Chandigarh on the said date. The said Kartar Singh who hold the general attorney for the Defendant had disclosed that he had come on the said date for execution of the sale deed, but neither Kartar Singh nor the Defendant came to the office of Sub-Registrar, Chandigarh to execute the sale deed in favour of the plaintiff in respect of the above said plot, though the plaintiff remained present in the office of Sub-Registrar, Chandigarh on the said day and got himself marked present by moving an application." But Exs.21 and 22 (the letter dated 7.6.1979 to the Sub-Registrar containing the Sub-Registrars endorsement) reads thus : "To, The Sub-Registrar, Chandigarh. Sir, We, Hartar Singh Sangha, S/o Shri Bikramjit Singh Sangha and Ms. Avtar Kaur D/o S. Charan Singh, 58, Sector-26, Madhya Marg, Chandigarh had entered into agreement with Mrs. Man Kaur, wife of Shri Jartar Singh through her general attorney and husband Major Kartar Singh for purchase of her annexe No.509, Sector-18B, Chandigarh. Today is the last date for the registration of said annexe and we (Purchasers) are ready with the payment to pay the balance full and final amount relating to the above mentioned property before the Sub-Registration, but the seller herself or through her general attorney have not turned up so far. We request you to mark out presence in your court. Thanking you, Yours faithfully, (Hartar Singh Sangha) (Avtar Kaur) through attorney Paramjit Singh Dated : 7.6.1979 The applicant Hartar Singh Sangha is present. Respondent Col. Kartar Singh name was called out, but was not found present. (sd/-) Sub-Registrar" This letter describes plaintiff and Ms. Avtar Kaur, daughter of S. Charan Singh as purchasers and states that plaintiff and Ms. Avtar Singh entered into agreement with defendant for purchase of the property (Annexe No.509, Sector-18B, Chandigarh). The letter is said to have been signed by plaintiff and Avtar Singh through Paramjit Singh (Attorney Holder). There is absolutely no reference or explanation either in the pleading or evidence as to who is Ms. Avtar Kaur, and how she became a purchaser under the agreement of sale. There is also no explanation as to why Avtar Kaur and Paramjit Singh, if they were present on 7.6.1979, were not examined. The said letter is not marked through either any of the sender or the receiver of the letter and has no evidentiary value. 23. The learned counsel for the respondent contended that in terms of the agreement, the defendant had to furnish an NOC from Chandigarh Administration, as also ULC clearance and income tax clearance required for the sale and there was nothing to show that she had obtained them, and therefore the question of plaintiff proving his readiness and willingness to perform his obligations did not arise. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant – vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not `ready and willing to perform his obligations.24. In this case, the evidence clearly showed that defendants attorney holder Kartar Singh had entrusted the work of securing the clearances to the property dealer Balraj Singh, who was acting on behalf of plaintiff. This was within the knowledge of Paramjit Singh, who was the attorney holder of plaintiff at the relevant point of time. Balraj Singh also admitted in his evidence that he was to get the NOC and ULC clearance. Balraj Singh sent a telegram to Kartar Singh at the instance of plaintiff, asking him to come to Chandigarh on 7.6.1979 and execute the sale deed. Therefore, Balraj Singh had either secured the certificates necessary for the sale or had deliberately called Kartar Singh to come over to Chandigarh, even though the plaintiff was not ready and the clearances had not been secured, to create evidence that plaintiff was ready. In neither case, the defendant could be faulted. Be that as it may.
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1[ds]12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. (e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder. (f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind or `conduct, normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide need and a purchaser seeking specific performance who has to show his `readiness and willingness fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.13. In this case, the matter has been handled by different persons at different points of time on behalf of the plaintiff(a) the negotiations and execution of agreement on 20.10.1978 were handled by plaintiffs attorney holder Paramjit Singh; (b) on 7.6.1979, the plaintiff was personally present and dealt with the matter himself; and (c) from 1.3.1980, the matter was dealt with by plaintiffs new attorney holder Jagtar Singh Sangha. The plaintiff neither signed the agreement of sale nor signed the plaint nor gave evidence, in particular, about his readiness and willingness. The agreement of sale was executed by plaintiffs attorney holder Paramjit Singh who was not examined. The plaint was signed by plaintiffs attorney holder Jagtar Singh Sangha (PW1) in whose favour plaintiff had executed the power of attorney on 1.3.1980 and who had no personal knowledge of the transaction. The said attorney holder (PW1) was not aware of the execution of the agreement, nor what happened till the last date fixed for performance had elapsed, nor what transpired on 7.6.1979. The said attorney holder (PW1) clearly stated in his evidence that he was not aware of anything that transpired prior to 1.3.1980 when the power of attorney was executed in his favour. Nothing of relevance transpired after 1.3.1980 except the issue of the suit notice dated 5.3.1980. He did not know whether defendant committed breach nor did he know about the readiness and willingness of the plaintiff. He admitted in his evidence : "I do not know the detailed terms and conditions of the transaction.... I do not know the facts of this transaction before my appointment in the year 1980..... I do not know whether plaintiff wrote any letter that he is ready to purchase this plot.... I do not know if anybody else also did any bargain in the transaction or not. I do not know who has been in correspondence on behalf of the plaintiff till June 1979". The evidence of PW 1 is therefore of no assistance in a suit for specific performance except to prove that he was authorized by the plaintiff to file a suit for specific performance.The time fixed for the performance in the agreement was 20.12.1978. But time was obviously not considered by the parties, to be of essence of the contract. The correspondence clearly shows that defendants attorney holder Lt.Col. Kartar Singh, was willing to perform the contract on 7.6.1979, nearly six months after the last date stipulated in the agreement. The evidence shows that the defendant had entrusted the work of securing the necessary permission/NOC/clearance for the sale to the property dealer to Balraj Singh who was also acting on behalf of the plaintiff. Balraj Singh sent a telegram dated 2.6.1979 to Kartar Singh who was staying at Rourkela to come over to Chandigarh on 7.6.1979 to execute the sale deed. The wording of the telegram is "Reach Chandigarh as Mr. Sangha is here. Sale deed registration is final. Date 7th June. No extension." The evidence of DW1 (Kartar Singh) and the evidence of Balraj Singh (PW2) show that Kartar Singh accordingly visited Chandigarh on 7.6.1979 and met the plaintiff in the office of Balraj Singh on 7.6.1979. Kartar Singhs evidence shows that he stated that he was ready to receive the balance of the sale price and execute the sale deed and had in fact came all the way from Rourkela to execute the sale deed, and that plaintiff told him that the entire amount was not available. Kartar Singh (DW1) also stated that after the meeting, plaintiff went away stating that he would try to arrange for money; that he (Kartar Singh) went back to the office of Balraj Singh at about 5.30 PM; that at that time, Balraj Singh showed the writing of(about plaintiffs presence and Kartar Singhs absence); that he (Kartar Singh) got irritated by the conduct of plaintiff and told Balraj Singh to tell plaintiff that plaintiff was trying to be too clever, and he may treat the transaction as cancelled. Kartar Singh categorically stated : "He (plaintiff) did not give any proof of money with him. He did not buy the stamp throughout the day and he did not show any inclination to buy. I was fully ready to register the sale deed on 7.6.79." There is no evidence to rebut the said evidence of Kartar Singh as plaintiff was not examined.21. Balraj Singh (PW2) who was examined as PW2 attempted to give some evidence about the readiness and willingness of the plaintiff. But the evidence of Balraj Singh can not be a substitute for the evidence of plaintiff regarding plaintiffs readiness and willingness. Further the correspondence between Balraj Singh and Kartar Singh demonstrates that the version and stand of Kartar Singh (DW1) appears to be more probable and correct. After Kartar Singh returned from Chandigarh after the visit on 7.6.1979, by letter dated 29.6.1979 Balraj Singh informed Kartar Singh that the purchaser was now ready to get the sale deed executed in July 1979. Immediately, Kartar Singh sent a reply dated 2.7.1979 referring to his visit to Chandigarh on 7.6.1979 and about plaintiff informing him that full amount of sale price was not available with him for proceeding with the sale, which showed that plaintiff was not ready and willing to complete the sale. Balraj Singh sent a reply dated 7.7.1979 which does not deny the version given by Kartar Singh in his letter dated 2.7.1979, (as to what happened on 7.6.1979) but concentrated on trying to persuade Kartar Singh to come again and execute the sale deed by receiving the higher price of Rs.1,60,000/even without delivering possession. The said letter dated 7.7.1979 of Balraj Singh also admits that marking the presence of plaintiff in the office of SubRegistrar on 7.6.1979 was only to save the position of plaintiff. The said letter also states: "Now he is ready to pay you the balance amount, considering Rs.160,000/as the sale price". The correspondence therefore clearly established that plaintiff was not ready and willing to get the sale deed executed within the time prescribed or even as on 7.6.1979 which was the last day of the extended period. The evidence also demonstrates that plaintiff was not in a position to perform the contract as Balraj Singh admits in his evidence that the purchaser had to purchase the stamp paper and that on 7.6.1979, the stamp paper was not purchased; and that the plaintiff had in his bank account Rs.114000 but that amount was not drawn from the bank. Balraj Singh and PW1 have also referred to the assets owned by plaintiff. Such evidence is of no assistance in the absence of evidence as to availability of money for purchase and about the readiness and willingness of plaintiff to perform the contract.22. There is also something doubtful about the following version given by Balraj Singh (PW2) in his evidence as to what happened at the SubRegistrars office on 7.6.1979 : "Then we i.e. myself, Hartar Singh plaintiff, Paramjit Singh, all went to the office of theThe plaintiff signed the application dated 7.6.1979 in my presence and likewise Paramjit Singh also signed the same and we then submitted the same which is Ex.P21 to theChandigarh. He then called Kartar Singh, through his Peon. Kartar Singh did not appear before the Sub.Registrar, Chandigarh, who then made an endorsement Ex.22 on the said application in my presence (objected to). In the plaint, the incident is described thus : "Ultimately, the general attorney of the Defendant namely Kartar Singh reached Chandigarh on 7.6.1979 and the plaintiff was also there in Chandigarh on the said date. The said Kartar Singh who hold the general attorney for the Defendant had disclosed that he had come on the said date for execution of the sale deed, but neither Kartar Singh nor the Defendant came to the office ofChandigarh to execute the sale deed in favour of the plaintiff in respect of the above said plot, though the plaintiff remained present in the office ofChandigarh on the said day and got himself marked present by moving anletter describes plaintiff and Ms. Avtar Kaur, daughter of S. Charan Singh as purchasers and states that plaintiff and Ms. Avtar Singh entered into agreement with defendant for purchase of the property (Annexe No.509,Chandigarh). The letter is said to have been signed by plaintiff and Avtar Singh through Paramjit Singh (Attorney Holder). There is absolutely no reference or explanation either in the pleading or evidence as to who is Ms. Avtar Kaur, and how she became a purchaser under the agreement of sale. There is also no explanation as to why Avtar Kaur and Paramjit Singh, if they were present on 7.6.1979, were not examined. The said letter is not marked through either any of the sender or the receiver of the letter and has no evidentiaryare two distinct issues. The first issue is the breach by the defendant – vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act.A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not `ready and willing to perform his obligations.24. In this case, the evidence clearly showed that defendants attorney holder Kartar Singh had entrusted the work of securing the clearances to the property dealer Balraj Singh, who was acting on behalf of plaintiff. This was within the knowledge of Paramjit Singh, who was the attorney holder of plaintiff at the relevant point of time. Balraj Singh also admitted in his evidence that he was to get the NOC and ULC clearance. Balraj Singh sent a telegram to Kartar Singh at the instance of plaintiff, asking him to come to Chandigarh on 7.6.1979 and execute the sale deed. Therefore, Balraj Singh had either secured the certificates necessary for the sale or had deliberately called Kartar Singh to come over to Chandigarh, even though the plaintiff was not ready and the clearances had not been secured, to create evidence that plaintiff was ready. In neither case, the defendant could be faulted. Be that as it may.
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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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in my presence (objected to). In the plaint, the incident is described thus : "Ultimately, the general attorney of the Defendant namely Kartar Singh reached Chandigarh on 7.6.1979 and the plaintiff was also there in Chandigarh on the said date. The said Kartar Singh who hold the general attorney for the Defendant had disclosed that he had come on the said date for execution of the sale deed, but neither Kartar Singh nor the Defendant came to the office of Sub-Registrar, Chandigarh to execute the sale deed in favour of the plaintiff in respect of the above said plot, though the plaintiff remained present in the office of Sub-Registrar, Chandigarh on the said day and got himself marked present by moving an application." But Exs.21 and 22 (the letter dated 7.6.1979 to the Sub-Registrar containing the Sub-Registrars endorsement) reads thus : "To, The Sub-Registrar, Chandigarh. Sir, We, Hartar Singh Sangha, S/o Shri Bikramjit Singh Sangha and Ms. Avtar Kaur D/o S. Charan Singh, 58, Sector-26, Madhya Marg, Chandigarh had entered into agreement with Mrs. Man Kaur, wife of Shri Jartar Singh through her general attorney and husband Major Kartar Singh for purchase of her annexe No.509, Sector-18B, Chandigarh. Today is the last date for the registration of said annexe and we (Purchasers) are ready with the payment to pay the balance full and final amount relating to the above mentioned property before the Sub-Registration, but the seller herself or through her general attorney have not turned up so far. We request you to mark out presence in your court. Thanking you, Yours faithfully, (Hartar Singh Sangha) (Avtar Kaur) through attorney Paramjit Singh Dated : 7.6.1979 The applicant Hartar Singh Sangha is present. Respondent Col. Kartar Singh name was called out, but was not found present. (sd/-) Sub-Registrar" This letter describes plaintiff and Ms. Avtar Kaur, daughter of S. Charan Singh as purchasers and states that plaintiff and Ms. Avtar Singh entered into agreement with defendant for purchase of the property (Annexe No.509, Sector-18B, Chandigarh). The letter is said to have been signed by plaintiff and Avtar Singh through Paramjit Singh (Attorney Holder). There is absolutely no reference or explanation either in the pleading or evidence as to who is Ms. Avtar Kaur, and how she became a purchaser under the agreement of sale. There is also no explanation as to why Avtar Kaur and Paramjit Singh, if they were present on 7.6.1979, were not examined. The said letter is not marked through either any of the sender or the receiver of the letter and has no evidentiary value. 23. The learned counsel for the respondent contended that in terms of the agreement, the defendant had to furnish an NOC from Chandigarh Administration, as also ULC clearance and income tax clearance required for the sale and there was nothing to show that she had obtained them, and therefore the question of plaintiff proving his readiness and willingness to perform his obligations did not arise. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant – vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not `ready and willing to perform his obligations.24. In this case, the evidence clearly showed that defendants attorney holder Kartar Singh had entrusted the work of securing the clearances to the property dealer Balraj Singh, who was acting on behalf of plaintiff. This was within the knowledge of Paramjit Singh, who was the attorney holder of plaintiff at the relevant point of time. Balraj Singh also admitted in his evidence that he was to get the NOC and ULC clearance. Balraj Singh sent a telegram to Kartar Singh at the instance of plaintiff, asking him to come to Chandigarh on 7.6.1979 and execute the sale deed. Therefore, Balraj Singh had either secured the certificates necessary for the sale or had deliberately called Kartar Singh to come over to Chandigarh, even though the plaintiff was not ready and the clearances had not been secured, to create evidence that plaintiff was ready. In neither case, the defendant could be faulted. Be that as it may.
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said letter also states: "Now he is ready to pay you the balance amount, considering Rs.160,000/as the sale price". The correspondence therefore clearly established that plaintiff was not ready and willing to get the sale deed executed within the time prescribed or even as on 7.6.1979 which was the last day of the extended period. The evidence also demonstrates that plaintiff was not in a position to perform the contract as Balraj Singh admits in his evidence that the purchaser had to purchase the stamp paper and that on 7.6.1979, the stamp paper was not purchased; and that the plaintiff had in his bank account Rs.114000 but that amount was not drawn from the bank. Balraj Singh and PW1 have also referred to the assets owned by plaintiff. Such evidence is of no assistance in the absence of evidence as to availability of money for purchase and about the readiness and willingness of plaintiff to perform the contract.22. There is also something doubtful about the following version given by Balraj Singh (PW2) in his evidence as to what happened at the SubRegistrars office on 7.6.1979 : "Then we i.e. myself, Hartar Singh plaintiff, Paramjit Singh, all went to the office of theThe plaintiff signed the application dated 7.6.1979 in my presence and likewise Paramjit Singh also signed the same and we then submitted the same which is Ex.P21 to theChandigarh. He then called Kartar Singh, through his Peon. Kartar Singh did not appear before the Sub.Registrar, Chandigarh, who then made an endorsement Ex.22 on the said application in my presence (objected to). In the plaint, the incident is described thus : "Ultimately, the general attorney of the Defendant namely Kartar Singh reached Chandigarh on 7.6.1979 and the plaintiff was also there in Chandigarh on the said date. The said Kartar Singh who hold the general attorney for the Defendant had disclosed that he had come on the said date for execution of the sale deed, but neither Kartar Singh nor the Defendant came to the office ofChandigarh to execute the sale deed in favour of the plaintiff in respect of the above said plot, though the plaintiff remained present in the office ofChandigarh on the said day and got himself marked present by moving anletter describes plaintiff and Ms. Avtar Kaur, daughter of S. Charan Singh as purchasers and states that plaintiff and Ms. Avtar Singh entered into agreement with defendant for purchase of the property (Annexe No.509,Chandigarh). The letter is said to have been signed by plaintiff and Avtar Singh through Paramjit Singh (Attorney Holder). There is absolutely no reference or explanation either in the pleading or evidence as to who is Ms. Avtar Kaur, and how she became a purchaser under the agreement of sale. There is also no explanation as to why Avtar Kaur and Paramjit Singh, if they were present on 7.6.1979, were not examined. The said letter is not marked through either any of the sender or the receiver of the letter and has no evidentiaryare two distinct issues. The first issue is the breach by the defendant – vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act.A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not `ready and willing to perform his obligations.24. In this case, the evidence clearly showed that defendants attorney holder Kartar Singh had entrusted the work of securing the clearances to the property dealer Balraj Singh, who was acting on behalf of plaintiff. This was within the knowledge of Paramjit Singh, who was the attorney holder of plaintiff at the relevant point of time. Balraj Singh also admitted in his evidence that he was to get the NOC and ULC clearance. Balraj Singh sent a telegram to Kartar Singh at the instance of plaintiff, asking him to come to Chandigarh on 7.6.1979 and execute the sale deed. Therefore, Balraj Singh had either secured the certificates necessary for the sale or had deliberately called Kartar Singh to come over to Chandigarh, even though the plaintiff was not ready and the clearances had not been secured, to create evidence that plaintiff was ready. In neither case, the defendant could be faulted. Be that as it may.
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Price Waterhouse & Company & Others Vs. Securities and Exchange Board of India & Another
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If at the initial stage it becomes necessary to pass an interim order, the SEBI has been endowed with such a power under Section 11 of the Act. In case the provisions of section 11 are construed in a restrictive manner, the interests of the investors in securities and development and regulation of securities market will suffer. Mr. Raval, the learned Additional Solicitor General has also taken the same position on behalf of the Board. Though the SEBI is possessed 9of the power to pass an interim order, in the instant case it did not exercise that power on the ground that it was in the interest of the shareholders to allow them to receive the value of their shares at the rate of Rs. 100/-per share which is the same rate at which the shares of SVCL held by the financial institutions were purchased by the nine companies. It cannot be said that the reason for not suspending the process set in motion by the public announcement was not adequate or was arbitrary or the reason suffered from illegality or irrationality. The grant of interim order was in the discretion of the SEBI. Such direction cannot be interfered with even when serious and substantial questions have been raised by the petitioner and the third respondent. I have no doubt that the SEBI will bestow its consideration on the issues which arise in the case. The determination of these questions will not be made by this Court sitting in writ jurisdiction when such determination lies in the domain of the authorities mentioned in the Regulations..... ...... ...............38. Considering the judgments and the scheme of the Act which we have adverted to earlier, the SEBI in the instant case, on the basis of show cause notices, has jurisdiction to inquire into and investigate the matter in connection with manipulating and fabricating the books of accounts and balance-sheets of the Company. The powers of the SEBI are, therefore, independent and it cannot be said that it can encroach upon the powers of the Institute under the CA Act.39. Section 11 (1) of the SEBI Act empowers SEBI to inquire into as well as to initiate the proceedings like the one in question. As pointed out earlier, the proceedings started against the petitioners on the basis of some statements made by one Ramalinga Raju on the basis of email to which a reference is made in the show cause notices. Whether any of the petitioners with an intention and knowledge tried to fabricate and fudge the books of accounts is a matter of investigation and inquiry by the SEBI. Ultimately if any evidence in this behalf is brought on record before the SEBI during the inquiry, appropriate steps can be taken in this behalf as provided for by the SEBI Act. We must at this stage take note of the argument of Mr. Seervai that so far as his clients are concerned, they were not in any way connected with the audit of the Company in any manner. Simply because they are Partners of Price Waterhouse Network, no notice could have been issued against his clients. However, so far as this submission is concerned, these petitioners can very well point out these facts before the concerned Member of SEBI. SEBI being a quasi-judicial authority, while adjudicating the matter, will look into this aspect and will consider as to whether any particular firm of Chartered Accountants has any role to play or for that reason any of the petitioners had played any role in any manner they may bring the matter to the notice of the SEBI. In a given case, if ultimately it is found that there was only some omission without any mens rea or connivance with anyone in any manner, naturally on the basis of such evidence the SEBI cannot give any further directions. If there is available evidence, SEBI can proceed further in the matter of giving direction against a particular Chartered Accountant as envisaged by Sections 11 and 12 of the SEBI Act and Regulations in this behalf. On the basis of detailed evidence on record, this aspect is required to be considered by SEBI. The question of jurisdictional fact depends upon the facts which may be available at the time of evidence before the SEBI. SEBI will have to answer the question as to whether on the basis of evidence on record, it has any power to give directions as provided under the SEBI Act. This aspect will depend upon the evidence which may be available at the time of inquiry. All these aspects are therefore left to the consideration of SEBI at the time of passing final order in the inquiry.40. It is needless to say and also as pointed out by Mr. Ravi Kadam that SEBI is not going to transgress its jurisdiction and will confine itself to the object of protecting the interests of investors and regulating the securities market. It is in the said context that the above matter will have to be considered. The SEBI shall now proceed with the matter as indicated above in accordance with law and pass appropriate orders after conclusion of the inquiry. At the time of passing the ultimate order, the SEBI shall consider the aspect as to whether any directions can be issued by SEBI on the basis of evidence available on record as per the provisions of Section 11 and 12 of the SEBI Act. The ultimate jurisdiction of SEBI for giving any such direction will depend upon the evidence which may be available during the course of inquiry. By this judgment, we have only indicated that on the face of it, it cannot be said that SEBI has absolutely no jurisdiction to issue show cause notices against the petitioners simply because they are professionals and whether the facts stated in the show cause notice are correct or not may be adjudicated as per the evidence available, after affording reasonable opportunity of hearing to the petitioners.
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0[ds]25. So far as the question as to whether the SEBI has jurisdiction to issue such show cause notices to the petitioners are concerned, we have already pointed out various provisions contained in the SEBI Act and the Regulations. Section 11 (1) of the SEBI Act, which we have incorporated earlier, provides that it is the duty of the Board to protect the interests of investors in securities and to promote the development and to regulate the securities market by such measures as it thinks fit. It is true, as argued by the learned counsel for the petitioners, that while exercising powers under the Act, it is not open to the SEBI to encroach upon the powers vested with the Institute under the CA Act. However, it is required to be examined as to whether in substance by initiating the proceedings under the SEBI Act, the SEBI is trying to overreach or encroach upon the powers conferred under the CA Act. In this connection, it is required to be noted that the SEBI has powers under the Act and the Regulation to take remedial measures in connection with safeguarding the interest of investors and regulate the securities market. Under Section 11 of the SEBI Act, the SEBI has power to prohibit fraudulent and unfair trade practices relating to securities market. Under Section 11 (4) of the SEBI Act, the SEBI is entitled to pass appropriate orders in the interest of investors or securities market and is entitled to take measures as prescribed in the said Section. Under Section 11 B, powers have been conferred on the SEBI to give appropriate directions even to any person or class of persons referred to in Section 12 or associated with the securities market. The powers available to the SEBI under the Act are to be exercised in the interest of investors and interest of securities market. In order to safeguard the interest of investors or interest of securities market, SEBI is entitled to take all ancillary steps and measures to see that the interest of the investors is protected. Looking to the provisions of the SEBI Act and the Regulations framed thereunder, in our view, it cannot be said that in a given case if there is material against any Chartered Accountant to the effect that he was instrumental in preparing false and fabricated accounts, the SEBI has absolutely no power to take any remedial or preventive measures in such a case. It cannot be said that the SEBI cannot give appropriate directions in safeguarding the interest of the investors of a listed Company. Whether such directions and orders are required to be issued or not is a matter of inquiry. In our view, the jurisdiction of SEBI would also depend upon the evidence which is available during such inquiry. It is true, as argued by the learned counsel for the petitioners, that the SEBI cannot regulate the profession of Chartered Accountants. This proposition cannot be disputed in any manner. It is required to be noted that by taking remedial and preventive measures in the interest of investors and for regulating the securities market, if any steps are taken by the SEBI, it can never be said that it is regulating the profession of the Chartered Accountants. So far as listed Companies are concerned, the SEBI has all the powers under the Act and the Regulations to take all remedial and protective measures to safeguard the interest of investors and securities market. So far as the role of Auditors is concerned, it is a very important role under the Companies Act. As posited in Section 227 of the Companies Act, every auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the Company, whether kept at the head office of the company or elsewhere, and shall be entitled to require from the officers of the Company such information and explanations as the auditor may think necessary for the performance of his duties. The auditors in the Company are functioning as statutory auditors. They have been appointed by the shareholders by majority. They owe a duty to the shareholders and are required to give a correct picture of the financial affairs of the Company. It is not uncommon nowadays that for financial gains even small investors are investing money in the share market. Mr. Ravi Kadam has rightly pointed out that there are cases where even retired persons are investing their retiral dues in the purchase of shares and ultimately if such a person is defrauded, he will be totally ruined and may be put in a situation where his life savings are wiped out. With a view to safeguard the interests of such investors, in our view, it is the duty of the SEBI to see that maximum care is required to be taken to protect the interest of such investors so that they may not be subjected to any fraud or cheating in the matter of their investments in the securities market. Normally, an investor invests his money by considering the financial health of the Company and in order to find out the same, one will naturally would bank upon the accounts andof the Company. If it is unearthed during inquiry before SEBI that a particular Chartered Accountant in connivance and in collusion with the Officers/Directors of the Company has concocted false accounts, in our view, there is no reason as to why to protect the interests of investors and regulate the securities market, such a person cannot be prevented from dealing with the auditing of such a public listed Company. In our view, the SEBI has got inherent powers to take all ancillary steps to safeguard the interest of investors and securities market. The powers conferred under various provisions of the Act are wide enough to cover such an eventuality and it cannot be given any restrictive meaning as suggested by the learned counsel for the petitioners. It is the statutory duty of the SEBI to see that the interests of the investors are protected and remedial and preventive measures are required to be taken in this behalf. It is required to be noted that in the instant case the inquiry is still pending and ultimately the decision is required to be taken by SEBI on the basis of available evidence on record. However, in order to determine the jurisdiction of SEBI, the contents of the show cause notice which is the first step of initiating proceedings are required to be seen. Reading the contents of the show cause notices and the relevant statutory provisions, it cannot be said that the SEBI has no jurisdiction at all to enquire into the affairs of the petitioners in so far as it relate to Satyam. In the case of Government contracts, the Government is entitled to blacklist a particular tenderer with a view to see that such a tenderer is not allowed to participate in the future tenders the same is done by following appropriate procedure in that behalf. In our view, it cannot be said that the show cause notices issued by SEBI are, on the face of it, not sustainable on the ground that the SEBI has no jurisdiction to enter into the affairs of the petitioners or that it lacks jurisdiction to go into such questions.In so far as the submission of Mr. Dwarkadas that the petitioners are not directly associated by the securities market is concerned, it is true that the petitioners may not have any direct association with the securities market since they were performing their duties as Auditors of the Company and were associated with the preparation of theof the Company. It is however required to be noted that normally an investor would like to invest his money in the shares of a Company on the basis of reflection of Companys financial health as disclosed in theof the Company and he may consider that it is safe to invest money in a particular company, if thehave been certified by reputed Chartered Accountants and it reflects that the financial position of the Company is sound. An investor is likely to be guided by the auditedof the Company and would presume that the facts incorporated in theare true and correct. Considering the said aspect, even though the petitioners may not have direct association in the share market activities, yet the statutory duty regarding auditing the accounts of the Company and preparation ofmay have a direct bearing in connection with the interest of the investors and the stability of the securities market. In our view, the petitioners in their capacity as auditors of the Company Satyam, which was at one point of time considered to be a blue chip company who had a defining influence on the securities market, can be said to be persons associated with the securities market within the meaning of the provisions of the said Act.28. As regards the contention of Mr. Dwarkadas that except the Institute, no other body has any power to regulate the profession, it is required to be noted that SEBIs powers are restricted only in connection with taking care of the interest of the investors and safeguarding the interest of the investors and also to regulate the share market. SEBI has, therefore, all the powers to give appropriate directions in the aforesaid field. By initiating the proceedings, it cannot be said that the SEBI is encroaching upon the rights of the Institute or prohibiting a Chartered Accountant from practicing as a Chartered Accountant. It is natural that SEBI has no power to pass an order prohibiting a particular Chartered Accountant from practicing as a Chartered Accountant or cannot debar a Chartered Accountant from practicing as Chartered Accountant but SEBI can definitely take regulatory measures under the SEBI Act in the matter of safeguarding the interest of the investors and securities market and in order to achieve the same, it can take appropriate remedial steps which may include keeping a person including a Chartered Accountant at a safe distance from the securities market. SEBI can always take preventive as well as remedial measures in this behalf. Exercising such powers, therefore, cannot be said to be in any way in conflict with the powers of the Institute under the CA Act. If ultimately any decision is taken by debarring any particular person from auditing the books of a listed company, such direction can always be said to be within the powers of SEBI and that is in the aid of regulating the affairs in connection with the investors interests and the interest of the securities market. By exercising such powers, it cannot be said that the SEBI is trying to regulate the profession of Chartered Accountants in any manner and in that view of the matter, in our view, it can never be said that it is in conflict with Section 24 of the CA Act.29. In so far as the submission of Mr. Dwarkadas that an Auditor can be removed only as per Section 227 of the Companies Act is concerned, it is true that Section 227 of the Companies Act provides for removing of an Auditor. However that is an independent and separate power altogether. So far as Section 55A of the Companies Act is concerned, SEBI can exercise certain powers as provided under the Companies Act. Sections 55A and 227 read asPowers of Securities and Exchange Board of India. The provisions contained in sections 55 to 58, 59 to 84, 108, 109, 110, 112, 113, 116, 117, 118, 119, 120, 121, 122, 206, 206A and 207, so far as they relate to issue and transfer of securities and nonpayment of dividend shall.(a) in case of listed public companies;(b) in case of those public companies which intend to get their securities listed on any recognized stock exchange in India, be administered by the Securities and Exchange Board of India; and(c) in any other case, be administered by the Central Government. 227. Powers and duties of auditors.(1) Every auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the company, whether kept at the head office of the company or elsewhere, and shall be entitled to require from the officers of the company such information and explanations as the auditor may think necessary for the performance of his duties as auditor.1A. Without prejudice to the provisions of subsection (1), the auditor shall inquire (a) whether loans and advances made by the company on the basis of security have been properly secured and whether the terms on which they have been made are not prejudicial to the interest of the company or its members;(b) whether transactions of the company which are represented merely by book entries are not prejudicial to the interests of the company;(c) where the company is not an investment company within the meaning of section 372 or a banking company, whether so much of the assets of the company as consist of shares, debentures and other securities have been sold at a price less than that at which they were purchased by the Company; (d) whether loans and advances made by the company have been shown as deposits;(e) whether personal expenses have been charged to revenue account;(f) where it is stated in the books and papers of the company that any shares have been allotted for cash, whether cash has actually been received in respect of such allotment, and if no cash has actually been so received, whether the position as stated in the account books and theis correct, regular and not misleading.2. The auditor shall make a report to the members of the company on the accounts examined by him, and on everyand profit and loss account and on every other document declared by this Act to be part of or annexed to theor profit and loss account which are laid before the company in general meeting during his tenure of office, and the report shall state whether, in his opinion and to the best of his information and according to the explanations given to him, the said accounts give the information required by this Act in the manner so required and give a true and fair view(i) in the case of theof the state of the companys affairs as at the end of its financial years; and(ii) in the case of the profit and loss account, of the profit or loss for its financial year.(3) The Auditors report shall also state(a) whether he has obtained all the information and explanations which to the best of his knowledge and belief were necessary for the purposes of his audit;(b) whether, in his opinion, proper books of account as required by law have been kept by the company so far as appears from his examination of those books, and proper returns adequate for the purposes of his audit have been received from branches not visited by him;(bb) whether the report on the accounts of any branch office audited under Section 228 by a person other than the companys auditor has been awarded to him as required by clause (c) of subsection (3) of that section and how he has dealt with the same in preparing the auditors report;(c) whether the companysand profit and loss account dealt with by the report are in agreement with the books of account and returns;(d) whether, in his opinion, the profit and loss account andcomply with the accounting standards referred to in subsection (3C) of Section 211;(e) in thick type or in italics the observations or comments of the auditors which have any adverse effect on the functioning of the company;(f) whether any director is disqualified from being appointed as director under clause (g) of subsection (11) of Section 274;(g) whether the cess payable under section 441A has been paid and if not, the details of amount of cess not so paid.4. Where any of the matters referred to in clauses (i) and (ii) of subsection (2) or in clauses (a), (b), (bb), (c) and (d) of subsection (3) is answered in the negative or with a qualification, the auditors report shall state the reason for the answer. 4A. The Central Government may, by general or special order, direct that, in the case of such class or description of companies as may be specified in the order, the auditors report shall also include a statement on such matters as may be specified therein: Provided that before making any such order the Central Government may consult the Institute of Chartered Accountants of India constituted under the Chartered Accountants Act, 1949 (38 of 1949), in regard to the class or description of companies and other ancillary matters proposed to be specified therein unless the Government decides that such consultation is not necessary or expedient in the circumstances of the case.5. The accounts of a company shall not be deemed as not having been, and the auditors report shall not state that those accounts have not been properly drawn up on the ground merely that the company had not disclosed certain matters if (a) those matters are such as the company is not required to disclose by virtue of any provisions contained in this or any other Act, and (b) those provisions are specified in theand profit and loss account of the company.30. As pointed out earlier, the aforesaid provisions are independent, over and above the powers available to the SEBI under the SEBI Act. It cannot be said that the SEBI has no power to take remedial measures as provided under Section 11 of the SEBI Act. It is required to be noted that so far as the powers of the Institute are concerned, the same are in connection with prohibiting the Chartered Accountant from practicing and removing his name from the roll which cannot be said to be similar to the powers prescribed under Section 11 and 12 of the SEBI Act as well as the Regulations framed thereunder. For example, under Section 24 of the SEBI Act, SEBI is even entitled to take penal action which powers are not available with the Institute in any manner. At this stage even the provisions of the Consumer Act may also be taken into account whereunder in the matter of deficiency in service, an appropriate order can be passed even against a professional but that would not mean that while exercising such powers the forum under the Consumer Protection Act is encroaching upon the powers of either the Institute of Chartered Accountants or for that reason powers prescribed under any other Act. It is true, as argued by Mr. Dwarkadas, that powers conferred on the SEBI must flow from the statutory provisions. But reading the provisions as indicated above, in our view, it cannot be said that there is lack of such power or that such power is not available with the SEBI.31. In so far as the submission of violation of fundamental rights under Article 19 (1) (g) and 19 (6) are concerned, a citizen is entitled to practice any profession, or to carry on any occupation, trade or business. Such rights are always subject to reasonable restrictions. In a given case if a person carrying on his trade or profession is found to have committed any illegalities, such person can be prevented from carrying on such profession in the area covered by a particular statute for a particular period and, therefore, there is no absolute right available to a citizen to carry on profession irrespective of any act, omission or commission alleged against such person and in such eventuality he can be subjected to proceedings prohibiting such person from carrying on such profession or trade.32. In the instant case, as pointed out earlier, if according to the SEBI, it is not advisable and safe to have any particular person to be an Auditor of a listed Company, if he is found that he has committed any misdeeds or fraud qua the interest of investors or the securities market, it can always regulate its affairs by preventing such person from carrying on such work for a particular period and exercising of such powers can be said to be in any way infringement of Article 19 (1) (g) of the Constitution of India. At this stage it is required to be noted that the jurisdiction of SEBI is restricted only to the listed companies. We are not in a position to agree with the submission of Mr. Dwarkadas that it is not open to SEBI to take shelter of accounting standards prescribed under the CA Act. However, if it is found in a given case that the Chartered Accountant has violated the audit norms prescribed by the Institute under the CA Act, the SEBI can certainly consider the said aspect in order to find out as to whether such a professional person should be allowed to continue to function as an Auditor of a listed Company if by continuing such person as an Auditor of a listed Company, it may hamper the interest of the investors of such a listed Company. Considering the matter from the aforesaid angle and considering the provisions of the SEBI Act, Companies Act and CA Act, in our view, it can never be said that the SEBI has absolutely no jurisdiction and that professionals like Chartered Accountants cannot be subjected to any inquiry or proceedings by the SEBI on the ground that it is only the Institute which can take care of such a situation. So far as the Regulations are concerned, they have been framed under Section 30 of the SEBI Act. Reading the said Section discloses that the SEBI is vested with the necessary powers for safeguarding the interest of investors by framing appropriate regulations. The SEBI Regulations are wide enough to be attracted to cover the nature of allegations made in the show cause notices. Whether the allegations stand proved would be a matter of inquiry on the basis ofper the show cause notices, the petitioners have been asked to show cause as to why the petitioners should not be debarred from carrying out the auditing work of a listed company for a particular period. As stated above, the jurisdiction and powers of the SEBI in this behalf are only restricted to the field of listed companies only. It is like a preventive action by which the SEBI wants to safeguard the interest of the investors. In the instant case, there is prima facie material available with the SEBI for holding such an inquiry. In view of the same, the decision of the Supreme Court cited above has no relevance to the facts of the present case.35. As regards the professional norms are concerned, it is true, as submitted by Mr. Dwarkadas, that it is only the Institute which is the regulating body to deal with the same. However, in a given case, if there is prima facie evidence in connection with the conduct of a Chartered Accountant such as fabricating the books of accounts, etc., the SEBI can certainly give appropriate direction not to utilize the services of such a Chartered Accountant in the matter of audit of a listed Company. At this stage we would like to put a word of caution that these observations have been made by us only with a view to find out whether SEBI lacks inherent jurisdiction and it should not mean that this Court has expressed any opinion regarding the conduct of a particular Chartered Accountant involved in the case. However, in order to find out whether there is total lack of jurisdiction or whether SEBI has jurisdiction to adjudicate the matter and in order to examine this question that these observations have been made by us. Since the inquiry has not commenced, we have merely confined ourselves to the allegations made in the show cause notices to find out as to whether SEBI has jurisdiction to proceed further with the inquiry and nothing more. However, on conclusion of inquiry, if no evidence is available regarding fabrication and falsification of accounts, etc., then naturally SEBI cannot give any direction in any manner and ultimately its jurisdiction will depend upon the evidence which may be available in the inquiry and SEBI has to decide as to whether any directions can be given on the basis of available evidence on record. In our view, such a question is required to be considered only after the evidence is available during the inquiry but surely it cannot be said that SEBI has no power even to inquire about the same and that on the face of it the jurisdiction is barred, as submitted by the learned counsel for the petitioners.Considering the judgments and the scheme of the Act which we have adverted to earlier, the SEBI in the instant case, on the basis of show cause notices, has jurisdiction to inquire into and investigate the matter in connection with manipulating and fabricating the books of accounts andof the Company. The powers of the SEBI are, therefore, independent and it cannot be said that it can encroach upon the powers of the Institute under the CA Act.Section 11 (1) of the SEBI Act empowers SEBI to inquire into as well as to initiate the proceedings like the one in question. As pointed out earlier, the proceedings started against the petitioners on the basis of some statements made by one Ramalinga Raju on the basis of email to which a reference is made in the show cause notices. Whether any of the petitioners with an intention and knowledge tried to fabricate and fudge the books of accounts is a matter of investigation and inquiry by the SEBI. Ultimately if any evidence in this behalf is brought on record before the SEBI during the inquiry, appropriate steps can be taken in this behalf as provided for by the SEBI Act. We must at this stage take note of the argument of Mr. Seervai that so far as his clients are concerned, they were not in any way connected with the audit of the Company in any manner. Simply because they are Partners of Price Waterhouse Network, no notice could have been issued against his clients. However, so far as this submission is concerned, these petitioners can very well point out these facts before the concerned Member of SEBI. SEBI being aauthority, while adjudicating the matter, will look into this aspect and will consider as to whether any particular firm of Chartered Accountants has any role to play or for that reason any of the petitioners had played any role in any manner they may bring the matter to the notice of the SEBI. In a given case, if ultimately it is found that there was only some omission without any mens rea or connivance with anyone in any manner, naturally on the basis of such evidence the SEBI cannot give any further directions. If there is available evidence, SEBI can proceed further in the matter of giving direction against a particular Chartered Accountant as envisaged by Sections 11 and 12 of the SEBI Act and Regulations in this behalf. On the basis of detailed evidence on record, this aspect is required to be considered by SEBI. The question of jurisdictional fact depends upon the facts which may be available at the time of evidence before the SEBI. SEBI will have to answer the question as to whether on the basis of evidence on record, it has any power to give directions as provided under the SEBI Act. This aspect will depend upon the evidence which may be available at the time of inquiry. All these aspects are therefore left to the consideration of SEBI at the time of passing final order in the inquiry.40. It is needless to say and also as pointed out by Mr. Ravi Kadam that SEBI is not going to transgress its jurisdiction and will confine itself to the object of protecting the interests of investors and regulating the securities market. It is in the said context that the above matter will have to be considered. The SEBI shall now proceed with the matter as indicated above in accordance with law and pass appropriate orders after conclusion of the inquiry. At the time of passing the ultimate order, the SEBI shall consider the aspect as to whether any directions can be issued by SEBI on the basis of evidence available on record as per the provisions of Section 11 and 12 of the SEBI Act. The ultimate jurisdiction of SEBI for giving any such direction will depend upon the evidence which may be available during the course of inquiry. By this judgment, we have only indicated that on the face of it, it cannot be said that SEBI has absolutely no jurisdiction to issue show cause notices against the petitioners simply because they are professionals and whether the facts stated in the show cause notice are correct or not may be adjudicated as per the evidence available, after affording reasonable opportunity of hearing to thewe have only interpreted the provisions of the SEBI Act and the CA Act, in our view, no substantial question of law of general importance is involved and hence the prayer for leave to appeal to Supreme Court is rejected.
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If at the initial stage it becomes necessary to pass an interim order, the SEBI has been endowed with such a power under Section 11 of the Act. In case the provisions of section 11 are construed in a restrictive manner, the interests of the investors in securities and development and regulation of securities market will suffer. Mr. Raval, the learned Additional Solicitor General has also taken the same position on behalf of the Board. Though the SEBI is possessed 9of the power to pass an interim order, in the instant case it did not exercise that power on the ground that it was in the interest of the shareholders to allow them to receive the value of their shares at the rate of Rs. 100/-per share which is the same rate at which the shares of SVCL held by the financial institutions were purchased by the nine companies. It cannot be said that the reason for not suspending the process set in motion by the public announcement was not adequate or was arbitrary or the reason suffered from illegality or irrationality. The grant of interim order was in the discretion of the SEBI. Such direction cannot be interfered with even when serious and substantial questions have been raised by the petitioner and the third respondent. I have no doubt that the SEBI will bestow its consideration on the issues which arise in the case. The determination of these questions will not be made by this Court sitting in writ jurisdiction when such determination lies in the domain of the authorities mentioned in the Regulations..... ...... ...............38. Considering the judgments and the scheme of the Act which we have adverted to earlier, the SEBI in the instant case, on the basis of show cause notices, has jurisdiction to inquire into and investigate the matter in connection with manipulating and fabricating the books of accounts and balance-sheets of the Company. The powers of the SEBI are, therefore, independent and it cannot be said that it can encroach upon the powers of the Institute under the CA Act.39. Section 11 (1) of the SEBI Act empowers SEBI to inquire into as well as to initiate the proceedings like the one in question. As pointed out earlier, the proceedings started against the petitioners on the basis of some statements made by one Ramalinga Raju on the basis of email to which a reference is made in the show cause notices. Whether any of the petitioners with an intention and knowledge tried to fabricate and fudge the books of accounts is a matter of investigation and inquiry by the SEBI. Ultimately if any evidence in this behalf is brought on record before the SEBI during the inquiry, appropriate steps can be taken in this behalf as provided for by the SEBI Act. We must at this stage take note of the argument of Mr. Seervai that so far as his clients are concerned, they were not in any way connected with the audit of the Company in any manner. Simply because they are Partners of Price Waterhouse Network, no notice could have been issued against his clients. However, so far as this submission is concerned, these petitioners can very well point out these facts before the concerned Member of SEBI. SEBI being a quasi-judicial authority, while adjudicating the matter, will look into this aspect and will consider as to whether any particular firm of Chartered Accountants has any role to play or for that reason any of the petitioners had played any role in any manner they may bring the matter to the notice of the SEBI. In a given case, if ultimately it is found that there was only some omission without any mens rea or connivance with anyone in any manner, naturally on the basis of such evidence the SEBI cannot give any further directions. If there is available evidence, SEBI can proceed further in the matter of giving direction against a particular Chartered Accountant as envisaged by Sections 11 and 12 of the SEBI Act and Regulations in this behalf. On the basis of detailed evidence on record, this aspect is required to be considered by SEBI. The question of jurisdictional fact depends upon the facts which may be available at the time of evidence before the SEBI. SEBI will have to answer the question as to whether on the basis of evidence on record, it has any power to give directions as provided under the SEBI Act. This aspect will depend upon the evidence which may be available at the time of inquiry. All these aspects are therefore left to the consideration of SEBI at the time of passing final order in the inquiry.40. It is needless to say and also as pointed out by Mr. Ravi Kadam that SEBI is not going to transgress its jurisdiction and will confine itself to the object of protecting the interests of investors and regulating the securities market. It is in the said context that the above matter will have to be considered. The SEBI shall now proceed with the matter as indicated above in accordance with law and pass appropriate orders after conclusion of the inquiry. At the time of passing the ultimate order, the SEBI shall consider the aspect as to whether any directions can be issued by SEBI on the basis of evidence available on record as per the provisions of Section 11 and 12 of the SEBI Act. The ultimate jurisdiction of SEBI for giving any such direction will depend upon the evidence which may be available during the course of inquiry. By this judgment, we have only indicated that on the face of it, it cannot be said that SEBI has absolutely no jurisdiction to issue show cause notices against the petitioners simply because they are professionals and whether the facts stated in the show cause notice are correct or not may be adjudicated as per the evidence available, after affording reasonable opportunity of hearing to the petitioners.
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made by us only with a view to find out whether SEBI lacks inherent jurisdiction and it should not mean that this Court has expressed any opinion regarding the conduct of a particular Chartered Accountant involved in the case. However, in order to find out whether there is total lack of jurisdiction or whether SEBI has jurisdiction to adjudicate the matter and in order to examine this question that these observations have been made by us. Since the inquiry has not commenced, we have merely confined ourselves to the allegations made in the show cause notices to find out as to whether SEBI has jurisdiction to proceed further with the inquiry and nothing more. However, on conclusion of inquiry, if no evidence is available regarding fabrication and falsification of accounts, etc., then naturally SEBI cannot give any direction in any manner and ultimately its jurisdiction will depend upon the evidence which may be available in the inquiry and SEBI has to decide as to whether any directions can be given on the basis of available evidence on record. In our view, such a question is required to be considered only after the evidence is available during the inquiry but surely it cannot be said that SEBI has no power even to inquire about the same and that on the face of it the jurisdiction is barred, as submitted by the learned counsel for the petitioners.Considering the judgments and the scheme of the Act which we have adverted to earlier, the SEBI in the instant case, on the basis of show cause notices, has jurisdiction to inquire into and investigate the matter in connection with manipulating and fabricating the books of accounts andof the Company. The powers of the SEBI are, therefore, independent and it cannot be said that it can encroach upon the powers of the Institute under the CA Act.Section 11 (1) of the SEBI Act empowers SEBI to inquire into as well as to initiate the proceedings like the one in question. As pointed out earlier, the proceedings started against the petitioners on the basis of some statements made by one Ramalinga Raju on the basis of email to which a reference is made in the show cause notices. Whether any of the petitioners with an intention and knowledge tried to fabricate and fudge the books of accounts is a matter of investigation and inquiry by the SEBI. Ultimately if any evidence in this behalf is brought on record before the SEBI during the inquiry, appropriate steps can be taken in this behalf as provided for by the SEBI Act. We must at this stage take note of the argument of Mr. Seervai that so far as his clients are concerned, they were not in any way connected with the audit of the Company in any manner. Simply because they are Partners of Price Waterhouse Network, no notice could have been issued against his clients. However, so far as this submission is concerned, these petitioners can very well point out these facts before the concerned Member of SEBI. SEBI being aauthority, while adjudicating the matter, will look into this aspect and will consider as to whether any particular firm of Chartered Accountants has any role to play or for that reason any of the petitioners had played any role in any manner they may bring the matter to the notice of the SEBI. In a given case, if ultimately it is found that there was only some omission without any mens rea or connivance with anyone in any manner, naturally on the basis of such evidence the SEBI cannot give any further directions. If there is available evidence, SEBI can proceed further in the matter of giving direction against a particular Chartered Accountant as envisaged by Sections 11 and 12 of the SEBI Act and Regulations in this behalf. On the basis of detailed evidence on record, this aspect is required to be considered by SEBI. The question of jurisdictional fact depends upon the facts which may be available at the time of evidence before the SEBI. SEBI will have to answer the question as to whether on the basis of evidence on record, it has any power to give directions as provided under the SEBI Act. This aspect will depend upon the evidence which may be available at the time of inquiry. All these aspects are therefore left to the consideration of SEBI at the time of passing final order in the inquiry.40. It is needless to say and also as pointed out by Mr. Ravi Kadam that SEBI is not going to transgress its jurisdiction and will confine itself to the object of protecting the interests of investors and regulating the securities market. It is in the said context that the above matter will have to be considered. The SEBI shall now proceed with the matter as indicated above in accordance with law and pass appropriate orders after conclusion of the inquiry. At the time of passing the ultimate order, the SEBI shall consider the aspect as to whether any directions can be issued by SEBI on the basis of evidence available on record as per the provisions of Section 11 and 12 of the SEBI Act. The ultimate jurisdiction of SEBI for giving any such direction will depend upon the evidence which may be available during the course of inquiry. By this judgment, we have only indicated that on the face of it, it cannot be said that SEBI has absolutely no jurisdiction to issue show cause notices against the petitioners simply because they are professionals and whether the facts stated in the show cause notice are correct or not may be adjudicated as per the evidence available, after affording reasonable opportunity of hearing to thewe have only interpreted the provisions of the SEBI Act and the CA Act, in our view, no substantial question of law of general importance is involved and hence the prayer for leave to appeal to Supreme Court is rejected.
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Gurram Sreeramulu, Garlapati Anjaneyulu and Company and Others Vs. State of Andhra Pradesh and Another
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the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy of refund. But delay must always be held to be unreasonable if the petition is filed beyond three years. Among the facts and circumstances which would be relevant for holding whether the petitioner is entitled to refund or not, the fact that the assessment order is not void but is merely erroneous in law or on facts would be a relevant circumstance. If the assessment order cannot be questioned in a civil court, the refund of tax also cannot be ordered by a civil court. That being so, even in a petition under article 226 of the Constitution there cannot be an order of refund without the assessment order itself being quashed. And in considering whether the assessment order also should be quashed the fact that the petitioner has not availed himself of the alternative remedy provided under the Act cannot be ignored. The further fact that for getting the assessment order quashed the jurisdiction of this court should have been invoked within the period of six months, as repeatedly laid down by this court, must also be kept in view. If the petition is filed beyond that period, the petitioner must satisfactorily explain the delay in approaching this court. Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facilitate the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under article 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him.Examining the petitioners claim of refund having regard to the principles noted above we find that the petitioner in W.P. No. 1426 of 1967 allowed the assessment orders in respect of 1957-58 to 1960-61 to become final. He did not prefer any appeals either to the Appellate Assistant Commissioner or the Tribunal. Nor did he canvass the correctness of these assessments by moving this High Court by way of a tax revision case. The last of such assessment orders was made in 1962. In W.P. No. 1427 of 1967 the assessment orders as confirmed by the Assistant Commercial Tax Officer on appeal relating to the assessment years 1961-62 and 1962-63, which form the subject-matter of that writ petition, were likewise allowed to become final. The same is the case with regard to the assessment orders for the assessment years 1957-58 to 1964-65 which form the subject-matter of Writ Petition No. 3053 of 1967. The writ petitions were filed in 1967, i.e., in all cases after a period of six months and except in regard to the assessments for the assessment years 1963-64 and 1964-65 concerning W.P. No. 3053 of 1967, all were made beyond three years of the filing of the writ petition. This ground itself is sufficient to disentitle them to the discretionary relief under article 226 of the Constitution. According to the petitioners they became aware of this payment under a mistake on account of the decision of the Sales Tax Appellate Tribunal in T.A. 861/61 and 95-65 dated 6th December, 1965, holding green ginger to be vegetable. If that be so, there was no reason why they should have waited for nearly one year and three months for filing the writ petitions. 12. Mr. Veerabhadrayya, learned counsel for the petitioners contends that T.R.Cs. were filed against the decision of the Tribunal and they were dismissed only on 23rd November, 1966. If the mistake was discovered by the decision of the Tribunal there was no reason to await the decision in the T.R.Cs. They also stated that the Government themselves had excluded green ginger and garlic from out of vegetables by G.O.Ms. No. 1949 dated 3rd December, 1965, and thus subjected them to tax. If that be so, the amendment must have put them on enquiry as to whether they had not paid the tax under a mistake for, according to the amendment, green ginger and garlic were vegetables and would be exempted from tax, unless specially excluded from the entry vegetables. That would have been an occasion for a diligent assessee to claim refund. But the petitioners did not take any steps then. This exclusion of green ginger and garlic from the entry vegetables was even prior to the decision of the Tribunal. More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State, which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice.
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0[ds]Having carefully considered these decisions, we are of the view that there is nothing in these decisions which gives an unqualified right to obtain the relief of refund under article 226 of the Constitution of India and which makes it obligatory on the High Court to direct refund of the tax no sooner than it is found that it was paid under mistake of lawAll the decisions which the learned counsel for the petitioner has cited are cases in which the imposition of tax was held to be either beyond the competence of the State Legislature or otherwise opposed to statute. In other words, the assessments were under void enactments. The authorities had no jurisdiction to levy the tax. In these circumstances, the assessment orders could be deemed to be void ab initio and, therefore, the State had no authority to collect the tax. The collection of such tax would be without the authority of law. Civil suits could always be filed for refund of the amounts so collected. In order to get refund of such tax it was not necessary for the petitioners to get the assessments quashed. Such assessment orders which were made under void enactments could be ignored and suits for refund could be straightaway filed. But in cases where the assessments were made under a valid legislation and turnover which was not subject to tax was held to be assessable turnover upon an erroneous view of law, could it be said that the assessing authority was acting without jurisdiction. Such assessment orders were only erroneous in law but not without jurisdiction and so long as the assessment order stood, it could (sic) be contended that the collection of the tax was without jurisdiction.It may be that irrespective of whether the assessment orders are void or merely erroneous, the payment of such tax would still be one made under a mistake and, therefore, the petitioner may be entitled to refund under section 72 of the Act. But still that fact cannot be wholly excluded from consideration in order to determine whether the petitioner is entitled to the discretionary remedy under article 226 of the Constitution. If the assessment order is not void but is only erroneous in law, the assessee is obliged to get the assessment order set asideIf the assessment order is merely erroneous in law, the assessee cannot claim refund without getting the assessment order quashed by availing himself of the alternative remedy provided under the statute. He cannot invoke the jurisdiction of a civil court for questioning the legality or propriety of the assessment order and if that order cannot be questioned, then the amount paid or recovered pursuant to that order cannot be directed to be refunded by a civil court. It that be so, then this court exercising jurisdiction under article 226 of the Constitution must necessarily take into account whether a party who has by his own laches has not chosen to avail himself of the alternative remedy provided by the statute for questioning the erroneous decisions of the assessing authorities by taking the matter in appeal or in revision and also by reference to this court and has allowed the assessment orders to become final, which assessment orders are not allowed by the statute to be questioned even by way of a civil suit, should be granted the indulgence to invoke the extraordinary jurisdiction of this court for the grant of the discretionary relief. Even this court cannot direct refund of tax paid in pursuance of such orders without quashing the assessment orders themselves. If the assessment orders have to be quashed, this court cannot shut its eyes to the long interval between the orders of assessment and the writ petitionsBut the petitioners would not be entitled to refund of tax as a matter of course merely because it has been paid under a mistake.The right to such refund is subject to questions of estoppel, waiver, limitation and the like. While for a suit for refund of money paid under a mistake, the period of limitation is three years from the date of discovery of the mistake, for claiming the same relief by way of a petition under article 226 of the Constitution of India, the petitioner cannot contend that the filing of such petition within a period of three years is without unreasonable delay. Having regard to the facts and circumstances of the case the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy of refund. But delay must always be held to be unreasonable if the petition is filed beyond three years. Among the facts and circumstances which would be relevant for holding whether the petitioner is entitled to refund or not, the fact that the assessment order is not void but is merely erroneous in law or on facts would be a relevant circumstance. If the assessment order cannot be questioned in a civil court, the refund of tax also cannot be ordered by a civil court. That being so, even in a petition under article 226 of the Constitution there cannot be an order of refund without the assessment order itself being quashed. And in considering whether the assessment order also should be quashed the fact that the petitioner has not availed himself of the alternative remedy provided under the Act cannot be ignored. The further fact that for getting the assessment order quashed the jurisdiction of this court should have been invoked within the period of six months, as repeatedly laid down by this court, must also be kept in view. If the petition is filed beyond that period, the petitioner must satisfactorily explain the delay in approaching this court. Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facilitate the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under article 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him.Examining the petitioners claim of refund having regard to the principles noted above we find that the petitioner in W.P. No. 1426 of 1967 allowed the assessment orders in respect of1 to become final. He did not prefer any appeals either to the Appellate Assistant Commissioner or the Tribunal. Nor did he canvass the correctness of these assessments by moving this High Court by way of a tax revision case. The last of such assessment orders was made in 1962. In W.P. No. 1427 of 1967 the assessment orders as confirmed by the Assistant Commercial Tax Officer on appeal relating to the assessment yearsr of that writ petition, were likewise allowed to become final. The same is the case with regard to the assessment orders for the assessment yearsr of Writ Petition No. 3053 of 1967. The writ petitions were filed in 1967, i.e., in all cases after a period of six months and except in regard to the assessments for the assessment years5 concerning W.P. No. 3053 of 1967, all were made beyond three years of the filing of the writ petition. This ground itself is sufficient to disentitle them to the discretionary relief under article 226 of the Constitution. According to the petitioners they became aware of this payment under a mistake on account of the decision of the Sales Tax Appellate Tribunal in T.A. 861/61 and5 dated 6th December, 1965, holding green ginger to be vegetable. If that be so, there was no reason why they should have waited for nearly one year and three months for filing the writ petitionsMr. Veerabhadrayya, learned counsel for the petitioners contends that T.R.Cs. were filed against the decision of the Tribunal and they were dismissed only on 23rd November, 1966.If the mistake was discovered by the decision of the Tribunal there was no reason to await the decision in the T.R.Cs. They also stated that the Government themselves had excluded green ginger and garlic from out of vegetables by G.O.Ms. No. 1949 dated 3rd December, 1965, and thus subjected them to tax. If that be so, the amendment must have put them on enquiry as to whether they had not paid the tax under a mistake for, according to the amendment, green ginger and garlic were vegetables and would be exempted from tax, unless specially excluded from the entry vegetables. That would have been an occasion for a diligent assessee to claim refund. But the petitioners did not take any steps then. This exclusion of green ginger and garlic from the entry vegetables was even prior to the decision of the Tribunal. More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State, which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice.
| 0 | 6,372 | 1,834 |
### 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 court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy of refund. But delay must always be held to be unreasonable if the petition is filed beyond three years. Among the facts and circumstances which would be relevant for holding whether the petitioner is entitled to refund or not, the fact that the assessment order is not void but is merely erroneous in law or on facts would be a relevant circumstance. If the assessment order cannot be questioned in a civil court, the refund of tax also cannot be ordered by a civil court. That being so, even in a petition under article 226 of the Constitution there cannot be an order of refund without the assessment order itself being quashed. And in considering whether the assessment order also should be quashed the fact that the petitioner has not availed himself of the alternative remedy provided under the Act cannot be ignored. The further fact that for getting the assessment order quashed the jurisdiction of this court should have been invoked within the period of six months, as repeatedly laid down by this court, must also be kept in view. If the petition is filed beyond that period, the petitioner must satisfactorily explain the delay in approaching this court. Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facilitate the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under article 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him.Examining the petitioners claim of refund having regard to the principles noted above we find that the petitioner in W.P. No. 1426 of 1967 allowed the assessment orders in respect of 1957-58 to 1960-61 to become final. He did not prefer any appeals either to the Appellate Assistant Commissioner or the Tribunal. Nor did he canvass the correctness of these assessments by moving this High Court by way of a tax revision case. The last of such assessment orders was made in 1962. In W.P. No. 1427 of 1967 the assessment orders as confirmed by the Assistant Commercial Tax Officer on appeal relating to the assessment years 1961-62 and 1962-63, which form the subject-matter of that writ petition, were likewise allowed to become final. The same is the case with regard to the assessment orders for the assessment years 1957-58 to 1964-65 which form the subject-matter of Writ Petition No. 3053 of 1967. The writ petitions were filed in 1967, i.e., in all cases after a period of six months and except in regard to the assessments for the assessment years 1963-64 and 1964-65 concerning W.P. No. 3053 of 1967, all were made beyond three years of the filing of the writ petition. This ground itself is sufficient to disentitle them to the discretionary relief under article 226 of the Constitution. According to the petitioners they became aware of this payment under a mistake on account of the decision of the Sales Tax Appellate Tribunal in T.A. 861/61 and 95-65 dated 6th December, 1965, holding green ginger to be vegetable. If that be so, there was no reason why they should have waited for nearly one year and three months for filing the writ petitions. 12. Mr. Veerabhadrayya, learned counsel for the petitioners contends that T.R.Cs. were filed against the decision of the Tribunal and they were dismissed only on 23rd November, 1966. If the mistake was discovered by the decision of the Tribunal there was no reason to await the decision in the T.R.Cs. They also stated that the Government themselves had excluded green ginger and garlic from out of vegetables by G.O.Ms. No. 1949 dated 3rd December, 1965, and thus subjected them to tax. If that be so, the amendment must have put them on enquiry as to whether they had not paid the tax under a mistake for, according to the amendment, green ginger and garlic were vegetables and would be exempted from tax, unless specially excluded from the entry vegetables. That would have been an occasion for a diligent assessee to claim refund. But the petitioners did not take any steps then. This exclusion of green ginger and garlic from the entry vegetables was even prior to the decision of the Tribunal. More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State, which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice.
### Response:
0
### Explanation:
filing of such petition within a period of three years is without unreasonable delay. Having regard to the facts and circumstances of the case the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy of refund. But delay must always be held to be unreasonable if the petition is filed beyond three years. Among the facts and circumstances which would be relevant for holding whether the petitioner is entitled to refund or not, the fact that the assessment order is not void but is merely erroneous in law or on facts would be a relevant circumstance. If the assessment order cannot be questioned in a civil court, the refund of tax also cannot be ordered by a civil court. That being so, even in a petition under article 226 of the Constitution there cannot be an order of refund without the assessment order itself being quashed. And in considering whether the assessment order also should be quashed the fact that the petitioner has not availed himself of the alternative remedy provided under the Act cannot be ignored. The further fact that for getting the assessment order quashed the jurisdiction of this court should have been invoked within the period of six months, as repeatedly laid down by this court, must also be kept in view. If the petition is filed beyond that period, the petitioner must satisfactorily explain the delay in approaching this court. Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facilitate the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under article 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him.Examining the petitioners claim of refund having regard to the principles noted above we find that the petitioner in W.P. No. 1426 of 1967 allowed the assessment orders in respect of1 to become final. He did not prefer any appeals either to the Appellate Assistant Commissioner or the Tribunal. Nor did he canvass the correctness of these assessments by moving this High Court by way of a tax revision case. The last of such assessment orders was made in 1962. In W.P. No. 1427 of 1967 the assessment orders as confirmed by the Assistant Commercial Tax Officer on appeal relating to the assessment yearsr of that writ petition, were likewise allowed to become final. The same is the case with regard to the assessment orders for the assessment yearsr of Writ Petition No. 3053 of 1967. The writ petitions were filed in 1967, i.e., in all cases after a period of six months and except in regard to the assessments for the assessment years5 concerning W.P. No. 3053 of 1967, all were made beyond three years of the filing of the writ petition. This ground itself is sufficient to disentitle them to the discretionary relief under article 226 of the Constitution. According to the petitioners they became aware of this payment under a mistake on account of the decision of the Sales Tax Appellate Tribunal in T.A. 861/61 and5 dated 6th December, 1965, holding green ginger to be vegetable. If that be so, there was no reason why they should have waited for nearly one year and three months for filing the writ petitionsMr. Veerabhadrayya, learned counsel for the petitioners contends that T.R.Cs. were filed against the decision of the Tribunal and they were dismissed only on 23rd November, 1966.If the mistake was discovered by the decision of the Tribunal there was no reason to await the decision in the T.R.Cs. They also stated that the Government themselves had excluded green ginger and garlic from out of vegetables by G.O.Ms. No. 1949 dated 3rd December, 1965, and thus subjected them to tax. If that be so, the amendment must have put them on enquiry as to whether they had not paid the tax under a mistake for, according to the amendment, green ginger and garlic were vegetables and would be exempted from tax, unless specially excluded from the entry vegetables. That would have been an occasion for a diligent assessee to claim refund. But the petitioners did not take any steps then. This exclusion of green ginger and garlic from the entry vegetables was even prior to the decision of the Tribunal. More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State, which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice.
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Mangalore Electricity Supply Company Ltd Vs. M/S. Amr Power Pvt. Ltd.
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for MESCOMs Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to the MESCOM in writing which shall specify in reasonable detail the Event of Default giving rise to the default notice, and calling upon the MESCOM to remedy the same.At the expiry of 30 (thirty) days from the delivery of this default notice and unless the Parties have agreed otherwise, or the Event of Default giving rise to the Default Notice has been remedied, Company may deliver a Termination Notice to MESCOM. Company may terminate this agreement by delivering such a Termination Notice to MESCOM and intimate the same to the Commission. Upon delivery of the Termination Notice this Agreement shall stand terminated and Company shall stand discharged of its obligations." 14. Article 9.2.2 contemplates that the failure of the Appellant in performing its financial and other material obligations under the PPA would constitute an event of default on its part. The said Article also provides for the First Respondent being permitted to sell electricity to third parties in the event of payment default by the appellant for a continuous period of three months. The procedure prescribed in Article 9.3.2 for termination for the Appellants default is that the First Respondent should deliver a Default Notice giving details in the event of default and asking the Appellant to remedy the same. If the Appellant does not remedy the defaults within the prescribed period of 30 days or any extended period as mutually agreed upon, the First Respondent may issue a Termination Notice. 15. The Default Notice dated 26.05.2011 refers to default in payments of bills, non-payment of interest for the delayed payments and non-opening of a Letter of Credit as provided for in Article 6.5 of the Agreement. In the reply dated 04.07.2011, the Appellant did not expressly deal with any of the defaults mentioned in the Default Notice. On the other hand the Appellant stated that it relied heavily on Government subsidy for payment to be made, an attempt would be made in the future to make payments promptly, LCs would be opened and that payment for January, February and March 2011 were delayed because the approval for inter-connection was given only on 23.06.2011. The invoice for December 2010 which was due to be paid on 19.01.2011 was actually paid on 24.02.2011. The payment to be made for the months of January 2011 and February 2011 due on 18.02.2011 and 18.03.2011 was actually done on 25.05.2011. Admittedly, interest on the delayed payments as provided for in Article 6 was not paid and a Letter of Credit was not opened. In view of the default mentioned by the First Respondent in the notice not being remedied within a period of 30 days, we are of the opinion that the Second Respondent Commission and the APTEL were correct in upholding the termination notice dated22.07.2011. We do not agree with the submissions of Mr. Giri that non-opening of Letter of Credit would not be a default covered by Article 9.2.2. As per Article 9.2.1, a failure or refusal by the Appellant to perform its financial and other material obligations under a PPA constitutes an event of default. Both the parties to the PPA are bound by the terms thereof and they are free to resort to action in accordance with the provisions contained therein. 16. This Court in Sarguja Transport Service (supra) held that withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty. (See Kandapazha Nadar, (supra). The First Respondent initially sought for open access for sale of electricity to third parties intra-state by filing O.P. No. 48 of 2011. After withdrawing O.P. No. 48 of 2011, the First Respondent filed a Petition before the CERC for inter-state open access. It is no doubt true that in O.P. No. 48 of 2011, the First Respondent also sought for a relief of a declaration that the PPA is not binding on it. Strictly speaking, there was no need for such a declaration being sought by the First Respondent as the PPA was terminated by issuance of a notice dated 22.07.2011. In any event, we are at present concerned with O.P.No.37 of 2012 in which the First Respondent raised a defence that Termination Notice was valid and that it was entitled to open access, which is legally permissible.17. The APTEL found that the grant of inter-connection approval on 26.03.2011 could not be a justification for delayed payment of bills. It was held that there was delay in payment of bills for January and February 2011 even after the inter-connection approval was given on 23.03.2011, as admittedly the payments were made only on 26.05.2011. The APTEL relied upon an earlier order passed by it in Appeal No.152 of 2012 M/s. Soham Manipatlu Power Pvt. Ltd. v. Karnataka Power Transmission Corp. & Ors. (decided on 12.02.2014) to hold that an inter-connection approval was not a condition precedent for payment of tariff invoices. We approve the above findings recorded by the APTEL.18. It is an admitted fact that the First Respondent continued to supply power to the Appellant on payment of L 2.80 per unit even after the notice of termination dated 22.07.2011. There was a refusal of open access to the First Respondent in the pending proceedings. There was also an interim order for maintenance of status quo in O.P.No.37 of 2012 by the Second Respondent Commission. In view of the fact that the power was being generated by the First Respondent and had to be supplied, the continuation of the supply made by the First Respondent after the Termination Notice dated 22.07.2011 cannot be taken to be a condonation of the events of default by the Appellant.
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0[ds]16. This Court in Sarguja Transport Service (supra) held that withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty. (See Kandapazha Nadar, (supra). The First Respondent initially sought for open access for sale of electricity to third partiesby filing O.P. No. 48 of 2011. After withdrawing O.P. No. 48 of 2011, the First Respondent filed a Petition before the CERC foropen access. It is no doubt true that in O.P. No. 48 of 2011, the First Respondent also sought for a relief of a declaration that the PPA is not binding on it. Strictly speaking, there was no need for such a declaration being sought by the First Respondent as the PPA was terminated by issuance of a notice dated 22.07.2011. In any event, we are at present concerned with O.P.No.37 of 2012 in which the First Respondent raised a defence that Termination Notice was valid and that it was entitled to open access, which is legally permissible.17. The APTEL found that the grant ofapproval on 26.03.2011 could not be a justification for delayed payment of bills. It was held that there was delay in payment of bills for January and February 2011 even after theapproval was given on 23.03.2011, as admittedly the payments were made only on 26.05.2011. The APTEL relied upon an earlier order passed by it in Appeal No.152 of 2012 M/s. Soham Manipatlu Power Pvt. Ltd. v. Karnataka Power Transmission Corp. & Ors. (decided on 12.02.2014) to hold that anapproval was not a condition precedent for payment of tariff invoices. We approve the above findings recorded by the APTEL.18. It is an admitted fact that the First Respondent continued to supply power to the Appellant on payment of L 2.80 per unit even after the notice of termination dated 22.07.2011. There was a refusal of open access to the First Respondent in the pending proceedings. There was also an interim order for maintenance of status quo in O.P.No.37 of 2012 by the Second Respondent Commission. In view of the fact that the power was being generated by the First Respondent and had to be supplied, the continuation of the supply made by the First Respondent after the Termination Notice dated 22.07.2011 cannot be taken to be a condonation of the events of default by the Appellant.
| 0 | 3,474 | 470 |
### 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:
for MESCOMs Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to the MESCOM in writing which shall specify in reasonable detail the Event of Default giving rise to the default notice, and calling upon the MESCOM to remedy the same.At the expiry of 30 (thirty) days from the delivery of this default notice and unless the Parties have agreed otherwise, or the Event of Default giving rise to the Default Notice has been remedied, Company may deliver a Termination Notice to MESCOM. Company may terminate this agreement by delivering such a Termination Notice to MESCOM and intimate the same to the Commission. Upon delivery of the Termination Notice this Agreement shall stand terminated and Company shall stand discharged of its obligations." 14. Article 9.2.2 contemplates that the failure of the Appellant in performing its financial and other material obligations under the PPA would constitute an event of default on its part. The said Article also provides for the First Respondent being permitted to sell electricity to third parties in the event of payment default by the appellant for a continuous period of three months. The procedure prescribed in Article 9.3.2 for termination for the Appellants default is that the First Respondent should deliver a Default Notice giving details in the event of default and asking the Appellant to remedy the same. If the Appellant does not remedy the defaults within the prescribed period of 30 days or any extended period as mutually agreed upon, the First Respondent may issue a Termination Notice. 15. The Default Notice dated 26.05.2011 refers to default in payments of bills, non-payment of interest for the delayed payments and non-opening of a Letter of Credit as provided for in Article 6.5 of the Agreement. In the reply dated 04.07.2011, the Appellant did not expressly deal with any of the defaults mentioned in the Default Notice. On the other hand the Appellant stated that it relied heavily on Government subsidy for payment to be made, an attempt would be made in the future to make payments promptly, LCs would be opened and that payment for January, February and March 2011 were delayed because the approval for inter-connection was given only on 23.06.2011. The invoice for December 2010 which was due to be paid on 19.01.2011 was actually paid on 24.02.2011. The payment to be made for the months of January 2011 and February 2011 due on 18.02.2011 and 18.03.2011 was actually done on 25.05.2011. Admittedly, interest on the delayed payments as provided for in Article 6 was not paid and a Letter of Credit was not opened. In view of the default mentioned by the First Respondent in the notice not being remedied within a period of 30 days, we are of the opinion that the Second Respondent Commission and the APTEL were correct in upholding the termination notice dated22.07.2011. We do not agree with the submissions of Mr. Giri that non-opening of Letter of Credit would not be a default covered by Article 9.2.2. As per Article 9.2.1, a failure or refusal by the Appellant to perform its financial and other material obligations under a PPA constitutes an event of default. Both the parties to the PPA are bound by the terms thereof and they are free to resort to action in accordance with the provisions contained therein. 16. This Court in Sarguja Transport Service (supra) held that withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty. (See Kandapazha Nadar, (supra). The First Respondent initially sought for open access for sale of electricity to third parties intra-state by filing O.P. No. 48 of 2011. After withdrawing O.P. No. 48 of 2011, the First Respondent filed a Petition before the CERC for inter-state open access. It is no doubt true that in O.P. No. 48 of 2011, the First Respondent also sought for a relief of a declaration that the PPA is not binding on it. Strictly speaking, there was no need for such a declaration being sought by the First Respondent as the PPA was terminated by issuance of a notice dated 22.07.2011. In any event, we are at present concerned with O.P.No.37 of 2012 in which the First Respondent raised a defence that Termination Notice was valid and that it was entitled to open access, which is legally permissible.17. The APTEL found that the grant of inter-connection approval on 26.03.2011 could not be a justification for delayed payment of bills. It was held that there was delay in payment of bills for January and February 2011 even after the inter-connection approval was given on 23.03.2011, as admittedly the payments were made only on 26.05.2011. The APTEL relied upon an earlier order passed by it in Appeal No.152 of 2012 M/s. Soham Manipatlu Power Pvt. Ltd. v. Karnataka Power Transmission Corp. & Ors. (decided on 12.02.2014) to hold that an inter-connection approval was not a condition precedent for payment of tariff invoices. We approve the above findings recorded by the APTEL.18. It is an admitted fact that the First Respondent continued to supply power to the Appellant on payment of L 2.80 per unit even after the notice of termination dated 22.07.2011. There was a refusal of open access to the First Respondent in the pending proceedings. There was also an interim order for maintenance of status quo in O.P.No.37 of 2012 by the Second Respondent Commission. In view of the fact that the power was being generated by the First Respondent and had to be supplied, the continuation of the supply made by the First Respondent after the Termination Notice dated 22.07.2011 cannot be taken to be a condonation of the events of default by the Appellant.
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16. This Court in Sarguja Transport Service (supra) held that withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty. (See Kandapazha Nadar, (supra). The First Respondent initially sought for open access for sale of electricity to third partiesby filing O.P. No. 48 of 2011. After withdrawing O.P. No. 48 of 2011, the First Respondent filed a Petition before the CERC foropen access. It is no doubt true that in O.P. No. 48 of 2011, the First Respondent also sought for a relief of a declaration that the PPA is not binding on it. Strictly speaking, there was no need for such a declaration being sought by the First Respondent as the PPA was terminated by issuance of a notice dated 22.07.2011. In any event, we are at present concerned with O.P.No.37 of 2012 in which the First Respondent raised a defence that Termination Notice was valid and that it was entitled to open access, which is legally permissible.17. The APTEL found that the grant ofapproval on 26.03.2011 could not be a justification for delayed payment of bills. It was held that there was delay in payment of bills for January and February 2011 even after theapproval was given on 23.03.2011, as admittedly the payments were made only on 26.05.2011. The APTEL relied upon an earlier order passed by it in Appeal No.152 of 2012 M/s. Soham Manipatlu Power Pvt. Ltd. v. Karnataka Power Transmission Corp. & Ors. (decided on 12.02.2014) to hold that anapproval was not a condition precedent for payment of tariff invoices. We approve the above findings recorded by the APTEL.18. It is an admitted fact that the First Respondent continued to supply power to the Appellant on payment of L 2.80 per unit even after the notice of termination dated 22.07.2011. There was a refusal of open access to the First Respondent in the pending proceedings. There was also an interim order for maintenance of status quo in O.P.No.37 of 2012 by the Second Respondent Commission. In view of the fact that the power was being generated by the First Respondent and had to be supplied, the continuation of the supply made by the First Respondent after the Termination Notice dated 22.07.2011 cannot be taken to be a condonation of the events of default by the Appellant.
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Daya Ram And Others Vs. Shyam Sundari
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are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate?The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230 . The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstance, the Court observed :"In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ..... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative."This, in our opinion, correctly represents the law. It is unnecessary here, to consider the question whether the same principle would apply when the person added is not the true legal representative at all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. We, have not been referred to any principle of construction of O. 22, R. or of the law which would militate against this view. This view of the law was approved and followed by Sulaiman, Acting C.J. in Muhammad Zafaryab Khan v. Abdul Razzac Khan, ILR 50 All 857 : (AIR 1928 All 532 ). A similar view of the law has been taken in Bombay - see Jehrabi Sadullakhan v. Bismillabi Sadruddin, AIR 1924 Bom 420 - as also in Patna - see Lilo Sonar v. Jhagru Sahu, ILR 3 Pat 853 : (AIR 1925 Pat 123) and Shib Dutta Singh v. Shaik Karim Baksh, ILR 4 Pat 320 : (AIR 1925 Pat 551 ) as well as in Nagpur Abdul Baki v. Bansilal Abirchand Firm, Nagpur, ILR (1944) Nag 577 : (AIR 1945 Nag 53). The Lahore High Court has also accepted the same view of the law - See Mst. Umrao begum v. Rahmat IIahi, ILR (1939) 20 Lah 433 : (AIR 1939 Lah 439). We are, therefore, clearly of the opinion that the appeal has not abated.12. The next question is about the effect of the appellant having omitted to include two of the heirs of Shyam Sundari, a son and a daughter who admittedly had an interest in the property, and the effect of this matter being brought to the notice of the Court before the hearing of the appeal. The decisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal it could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the record complete.
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0[ds]We do not see any substance in this argument. If the property had been acquired under the Land Acquisition Act compensation at the market value with the solatium would have been provided and Shyam Sundari would have been entitled to a third share in that compensation. There is, therefore, no question of Mata Din salvaging something for the co-owners, and on that ground being entitled to plead an equity based on such an act. Nor is there any substance in the argument derived from the analogy of improvements effected by co-owners or co-sharers, for admittedly Mata Din dealt with the property as full owner denying the claims of Shyam Sundari to a third share in the property. Virtually it would be seen that the equity pleaded is based on the principle underlying S.51 of the Transfer of Property Act, and as we have seen, the argument calling in aid this provision of law had been urged before the High Court in the appeal against the decree in suit 20 of 1922 and had been rejected for the reason we have extracted earlier, and these reasons clearly negative all bona fides in the construction of these buildings. In these circumstances, we consider that the learned Judges were justified in treating the acts of Mata bin as those of a trespasser who, with notice of the claim of the true owner, had effected constructions on the property. It is obvious that in those circumstances he could claim no special equity based upon his having bona fide put common property to use and effect improvements on it. We consider, therefore, that the decree passed by the High Court is not open to objection and the appeal has accordingly toin our opinion, correctly represents the law. It is unnecessary here, to consider the question whether the same principle would apply when the person added is not the true legal representative at all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. We, have not been referred to any principle of construction of O. 22, R. or of the law which would militate against thisdecisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal it could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the recordalmost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230 . The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstance, the Court observedour opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ..... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legals to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal it could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the record
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### 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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are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate?The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230 . The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstance, the Court observed :"In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ..... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative."This, in our opinion, correctly represents the law. It is unnecessary here, to consider the question whether the same principle would apply when the person added is not the true legal representative at all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. We, have not been referred to any principle of construction of O. 22, R. or of the law which would militate against this view. This view of the law was approved and followed by Sulaiman, Acting C.J. in Muhammad Zafaryab Khan v. Abdul Razzac Khan, ILR 50 All 857 : (AIR 1928 All 532 ). A similar view of the law has been taken in Bombay - see Jehrabi Sadullakhan v. Bismillabi Sadruddin, AIR 1924 Bom 420 - as also in Patna - see Lilo Sonar v. Jhagru Sahu, ILR 3 Pat 853 : (AIR 1925 Pat 123) and Shib Dutta Singh v. Shaik Karim Baksh, ILR 4 Pat 320 : (AIR 1925 Pat 551 ) as well as in Nagpur Abdul Baki v. Bansilal Abirchand Firm, Nagpur, ILR (1944) Nag 577 : (AIR 1945 Nag 53). The Lahore High Court has also accepted the same view of the law - See Mst. Umrao begum v. Rahmat IIahi, ILR (1939) 20 Lah 433 : (AIR 1939 Lah 439). We are, therefore, clearly of the opinion that the appeal has not abated.12. The next question is about the effect of the appellant having omitted to include two of the heirs of Shyam Sundari, a son and a daughter who admittedly had an interest in the property, and the effect of this matter being brought to the notice of the Court before the hearing of the appeal. The decisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal it could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the record complete.
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all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. We, have not been referred to any principle of construction of O. 22, R. or of the law which would militate against thisdecisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal it could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the recordalmost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230 . The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstance, the Court observedour opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ..... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legals to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal it could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the record
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Municipal Corporation Of Delhi Vs. Ghisa Ram
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sample to the respondent the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analsed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months. 7. It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and, is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. 8. We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. 9. In the present case, the sample was taken on the 20th September, 1961. Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961.It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962. The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under S. 15 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after the report of the Public Analyst had been issued by him. This is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution. 10. Learned counsel for the appellant drew our attention to a decision reported in Buckling v. Parker, (1906) 1 KB 527. That case was concerned with similar law in England, but, there, the provision relating to the testing of the sample kept with the vendor was quite different. In England, there was no restriction that the vendor could not have his sample tested until after the prosecution was launched, nor did the subsequent report have the effect of completely superseding the earlier report of the Analyst. 11. In Municipal Corporation, Gwalior v. Kishan Swaroop, AIR 1965 Madh Pra 180 it was held that, where there was delay in launching the prosecution, it deprived the accused of the valuable right to challenge the report of the Analyst in the manner prescribed by S. 13 (2) of the Act, and when this right was denied to the accused for no fault of his, but wholly due to the inordinate laches of the prosecution, no weight could be given to the report of the Public Analyst. That decision proceeded on the basis of the value of the report of the Public Analyst being affected by the fact that the accused had been deprived of his right to challenge that report by obtaining a certificate from the Director of the Central Food Laboratory. The report of the Public Analyst, as we have said earlier, does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution.
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0[ds]There can be no doubt that sub-s. (a) of S. 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample. It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst. If, in any case, the accused does not choose to exercise this right, the case against him can be decided on the basis of the report of the Public Analyst. Difficulty, however, arises in a case where the accused does exercise the right by making a request to the Court to send his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reason, including the reason that the sample of the food article has so deteriorated and become decomposed that no analysis is possible5. In the present case we find that the decomposition of the sample, which the respondent desired should be analysed by the Director of the Central Food Laboratory took place because of the long delay that had occurred in sending the sample to the Director. The sample was taken on September 20, 1961, while it was sent to the Director after October 4, 1963, when the respondent made his application in that behalf. The submission on behalf of the respondent was that the appellant instituted the prosecution of the respondent on May 23, 1962, and consequently, under S. 13 (2) of the Act, the right accrued to the respondent to have the sample sent for analysis only thereafter. Section 18 (2) specifically mentions that the accused vendor may make the application "after the institution of a prosecution under the Act". No right vested in the respondent to have the sample analysed in this case until the prosecution was launched on May 23, 19626. The opinion of one of the experts, Dr. Sat Parkash, given in this case show that in the case of a food article, like curd, it starts undergoing changes after a week, if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand, if the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis. without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analsed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months7. It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and, is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein8. We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible9. In the present case, the sample was taken on the 20th September, 1961. Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961.It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962. The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under S. 15 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after the report of the Public Analyst had been issued by him. This is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecutionThe proposition put forward on behalf of the appellant appears to be correct. Under S. 13 (3) of the Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst. The proviso ton (5) of S. 13 further lays down that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. These provisions of the Act are however, only attracted when, in fact, an analysis of the sample sent to the Director of the Central Food Laboratory is made by him on the basis of which he issues a certificate. If, for any reason, no certificate is issued, the report given by the Public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory. Further, there being no certificate issued by the Director of the Central Food Laboratory, no question can arise of his certificate becoming final and conclusive evidence of the report contained in itThe report of the Public Analyst, as we have said earlier, does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution.
| 0 | 2,558 | 1,618 |
### 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:
sample to the respondent the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analsed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months. 7. It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and, is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. 8. We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. 9. In the present case, the sample was taken on the 20th September, 1961. Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961.It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962. The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under S. 15 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after the report of the Public Analyst had been issued by him. This is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution. 10. Learned counsel for the appellant drew our attention to a decision reported in Buckling v. Parker, (1906) 1 KB 527. That case was concerned with similar law in England, but, there, the provision relating to the testing of the sample kept with the vendor was quite different. In England, there was no restriction that the vendor could not have his sample tested until after the prosecution was launched, nor did the subsequent report have the effect of completely superseding the earlier report of the Analyst. 11. In Municipal Corporation, Gwalior v. Kishan Swaroop, AIR 1965 Madh Pra 180 it was held that, where there was delay in launching the prosecution, it deprived the accused of the valuable right to challenge the report of the Analyst in the manner prescribed by S. 13 (2) of the Act, and when this right was denied to the accused for no fault of his, but wholly due to the inordinate laches of the prosecution, no weight could be given to the report of the Public Analyst. That decision proceeded on the basis of the value of the report of the Public Analyst being affected by the fact that the accused had been deprived of his right to challenge that report by obtaining a certificate from the Director of the Central Food Laboratory. The report of the Public Analyst, as we have said earlier, does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution.
### Response:
0
### Explanation:
total period which may be available for making analysis. without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analsed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months7. It appears to us that when a valuable right is conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and, is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein8. We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible9. In the present case, the sample was taken on the 20th September, 1961. Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961.It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962. The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under S. 15 (2) of the Act without being handicapped by the deterioration of his sample. The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after the report of the Public Analyst had been issued by him. This is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecutionThe proposition put forward on behalf of the appellant appears to be correct. Under S. 13 (3) of the Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst. The proviso ton (5) of S. 13 further lays down that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. These provisions of the Act are however, only attracted when, in fact, an analysis of the sample sent to the Director of the Central Food Laboratory is made by him on the basis of which he issues a certificate. If, for any reason, no certificate is issued, the report given by the Public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory. Further, there being no certificate issued by the Director of the Central Food Laboratory, no question can arise of his certificate becoming final and conclusive evidence of the report contained in itThe report of the Public Analyst, as we have said earlier, does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution.
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ASST. PROVIDENT FUND COMMISSIONER EPFO, BAREILLY Vs. M/S U P STATE WAREHOUSING CORP
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as to entitle the workers to claim the benefits of the Act. 9. The appellant with a view to decide this question accordingly issued notice to the Corporation under Section 7A of the Act and called upon them to pay the arrears due towards provident fund contribution of these workers (159) in accordance with the provisions of the Act. 10. The Corporation contested the show cause notice inter alia on the ground that since there was no relationship of employer and employee between the Corporation and these workers, the Corporation was not liable to pay any contribution of these workers under the Act. 11. The Corporation also pointed out that the question as to whether these workers were the employees of the Corporation or not was already gone into between the parties before the Labour Court in adjudication Case Nos. 89/2006 and 3/2009 and the same was decided by the Labour Court in workers favour but later the award of the Labour Court was set aside by the High Court by order dated 15.05.2013 in W.P. No 72314 of 2010. It is on this basis, the Corporation contended that in the light of this finding having been recorded by the High Court in their favour, the present proceedings initiated under Section 7A of the Act against the Corporation are wholly devoid of any merit and hence the proceedings be withdrawn. 12. By assessment order dated 02.12.2002, the adjudicating authority did not accept the contentions raised by the Corporation and held that the Corporation was liable to pay the contribution of these workers in accordance with the provisions of the Act. The appellate authority constituted under the Act upheld the order, which gave rise to filing of the writ petition by the Corporation in the High Court of Allahabad. 13. By impugned order, the High Court (Single Judge) allowed the writ petition and set aside the order of the adjudicating authority and the appellate authority. The High Court simply placed reliance on the finding recorded by the High Court in the earlier proceedings and held that since there was no relationship of master and servant between the Corporation (as master) and the workers (as servants) as was held by the High Court in the earlier writ proceedings, the proceedings in question are rendered bad in law and deserves to be quashed. 14. It is against this order, the Provident Fund Authorities felt aggrieved and filed this appeal by way of special leave in this Court questioning its legality and correctness. 15. So the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the writ petition filed by the Corporation and thereby was also justified in setting aside the orders of the adjudicating authority and the appellate authority. 16. Heard Mr. Keshav Mohan, learned counsel for the appellant and Mr. P.S. Misra, learned senior counsel for respondent No.1 and Mr. R.R. Rajesh, learned counsel for respondent No.2. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order remand the case to the High Court (writ court) for deciding the writ petition afresh on merits. 18. In our considered opinion, the need to remand the case to the High Court has arisen for the reason that the High Court failed to examine the issue keeping in view the definition of employee as defined under Section 2(f) of the Act which reads as under: 2(f) employee means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets, his wages directly or indirectly from the employer, and includes any person,- (i) employed by or through a contractor in or in connection with the work of the establishment; (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment; (emphasis supplied) 19. In our view, the High Court should have seen that the proceedings in question have arisen out of the Act in question and, therefore, the issue was required to be decided in the light of the relevant provisions of the Act in question but not in the light of the finding recorded in the proceedings arising under the Industrial Disputes Act, 1947(hereinafter referred to as the ID Act). 20. The High Court also should have seen that in order to decide the relationship of employer and employee for the purpose of applicability of the Act in question, the issue has to be decided in the light of definition of employee as defined under Section 2(f) of the Act. 21. It should have been seen that firstly, the definition of employee under the ID Act is not identical to the definition of employee defined under Section 2(f) of the Act; and secondly, the object of the ID Act and the Act in question is not the same. In other words, the definition of employee under the ID Act and the one defined under the Act in question are not similar. Even their objects are also not identical. 22. It is for these two reasons, any finding recorded by the Labour Court while deciding the dispute under the ID Act will be of no consequence while deciding the question arising under the Act in question. The issue was, therefore, required to be decided independently and de hors the proceedings decided under the ID Act. 23. Since the High Court did not notice the definition of employee defined under Section 2(f) of the Act and proceeded to pass the impugned order only in the light of finding recorded in the proceedings arising under the ID Act in the order dated 15.05.2013 passed in W.P. No.72314 of 2010, the impugned order is rendered bad in law and, therefore, calls for interference in this appeal.
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1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order remand the case to the High Court (writ court) for deciding the writ petition afresh on merits18. In our considered opinion, the need to remand the case to the High Court has arisen for the reason that the High Court failed to examine the issue keeping in view the definition of employee as defined under Section 2(f) of the Act19. In our view, the High Court should have seen that the proceedings in question have arisen out of the Act in question and, therefore, the issue was required to be decided in the light of the relevant provisions of the Act in question but not in the light of the finding recorded in the proceedings arising under the Industrial Disputes Act, 1947(hereinafter referred to as the ID Act)20. The High Court also should have seen that in order to decide the relationship of employer and employee for the purpose of applicability of the Act in question, the issue has to be decided in the light of definition of employee as defined under Section 2(f) of the Act21. It should have been seen that firstly, the definition of employee under the ID Act is not identical to the definition of employee defined under Section 2(f) of the Act; and secondly, the object of the ID Act and the Act in question is not the same. In other words, the definition of employee under the ID Act and the one defined under the Act in question are not similar. Even their objects are also not identical22. It is for these two reasons, any finding recorded by the Labour Court while deciding the dispute under the ID Act will be of no consequence while deciding the question arising under the Act in question. The issue was, therefore, required to be decided independently and de hors the proceedings decided under the ID Act23. Since the High Court did not notice the definition of employee defined under Section 2(f) of the Act and proceeded to pass the impugned order only in the light of finding recorded in the proceedings arising under the ID Act in the order dated 15.05.2013 passed in W.P. No.72314 of 2010, the impugned order is rendered bad in law and, therefore, calls for interference in this appeal.
| 1 | 1,549 | 459 |
### 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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as to entitle the workers to claim the benefits of the Act. 9. The appellant with a view to decide this question accordingly issued notice to the Corporation under Section 7A of the Act and called upon them to pay the arrears due towards provident fund contribution of these workers (159) in accordance with the provisions of the Act. 10. The Corporation contested the show cause notice inter alia on the ground that since there was no relationship of employer and employee between the Corporation and these workers, the Corporation was not liable to pay any contribution of these workers under the Act. 11. The Corporation also pointed out that the question as to whether these workers were the employees of the Corporation or not was already gone into between the parties before the Labour Court in adjudication Case Nos. 89/2006 and 3/2009 and the same was decided by the Labour Court in workers favour but later the award of the Labour Court was set aside by the High Court by order dated 15.05.2013 in W.P. No 72314 of 2010. It is on this basis, the Corporation contended that in the light of this finding having been recorded by the High Court in their favour, the present proceedings initiated under Section 7A of the Act against the Corporation are wholly devoid of any merit and hence the proceedings be withdrawn. 12. By assessment order dated 02.12.2002, the adjudicating authority did not accept the contentions raised by the Corporation and held that the Corporation was liable to pay the contribution of these workers in accordance with the provisions of the Act. The appellate authority constituted under the Act upheld the order, which gave rise to filing of the writ petition by the Corporation in the High Court of Allahabad. 13. By impugned order, the High Court (Single Judge) allowed the writ petition and set aside the order of the adjudicating authority and the appellate authority. The High Court simply placed reliance on the finding recorded by the High Court in the earlier proceedings and held that since there was no relationship of master and servant between the Corporation (as master) and the workers (as servants) as was held by the High Court in the earlier writ proceedings, the proceedings in question are rendered bad in law and deserves to be quashed. 14. It is against this order, the Provident Fund Authorities felt aggrieved and filed this appeal by way of special leave in this Court questioning its legality and correctness. 15. So the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the writ petition filed by the Corporation and thereby was also justified in setting aside the orders of the adjudicating authority and the appellate authority. 16. Heard Mr. Keshav Mohan, learned counsel for the appellant and Mr. P.S. Misra, learned senior counsel for respondent No.1 and Mr. R.R. Rajesh, learned counsel for respondent No.2. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order remand the case to the High Court (writ court) for deciding the writ petition afresh on merits. 18. In our considered opinion, the need to remand the case to the High Court has arisen for the reason that the High Court failed to examine the issue keeping in view the definition of employee as defined under Section 2(f) of the Act which reads as under: 2(f) employee means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets, his wages directly or indirectly from the employer, and includes any person,- (i) employed by or through a contractor in or in connection with the work of the establishment; (ii) engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment; (emphasis supplied) 19. In our view, the High Court should have seen that the proceedings in question have arisen out of the Act in question and, therefore, the issue was required to be decided in the light of the relevant provisions of the Act in question but not in the light of the finding recorded in the proceedings arising under the Industrial Disputes Act, 1947(hereinafter referred to as the ID Act). 20. The High Court also should have seen that in order to decide the relationship of employer and employee for the purpose of applicability of the Act in question, the issue has to be decided in the light of definition of employee as defined under Section 2(f) of the Act. 21. It should have been seen that firstly, the definition of employee under the ID Act is not identical to the definition of employee defined under Section 2(f) of the Act; and secondly, the object of the ID Act and the Act in question is not the same. In other words, the definition of employee under the ID Act and the one defined under the Act in question are not similar. Even their objects are also not identical. 22. It is for these two reasons, any finding recorded by the Labour Court while deciding the dispute under the ID Act will be of no consequence while deciding the question arising under the Act in question. The issue was, therefore, required to be decided independently and de hors the proceedings decided under the ID Act. 23. Since the High Court did not notice the definition of employee defined under Section 2(f) of the Act and proceeded to pass the impugned order only in the light of finding recorded in the proceedings arising under the ID Act in the order dated 15.05.2013 passed in W.P. No.72314 of 2010, the impugned order is rendered bad in law and, therefore, calls for interference in this appeal.
### Response:
1
### Explanation:
17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order remand the case to the High Court (writ court) for deciding the writ petition afresh on merits18. In our considered opinion, the need to remand the case to the High Court has arisen for the reason that the High Court failed to examine the issue keeping in view the definition of employee as defined under Section 2(f) of the Act19. In our view, the High Court should have seen that the proceedings in question have arisen out of the Act in question and, therefore, the issue was required to be decided in the light of the relevant provisions of the Act in question but not in the light of the finding recorded in the proceedings arising under the Industrial Disputes Act, 1947(hereinafter referred to as the ID Act)20. The High Court also should have seen that in order to decide the relationship of employer and employee for the purpose of applicability of the Act in question, the issue has to be decided in the light of definition of employee as defined under Section 2(f) of the Act21. It should have been seen that firstly, the definition of employee under the ID Act is not identical to the definition of employee defined under Section 2(f) of the Act; and secondly, the object of the ID Act and the Act in question is not the same. In other words, the definition of employee under the ID Act and the one defined under the Act in question are not similar. Even their objects are also not identical22. It is for these two reasons, any finding recorded by the Labour Court while deciding the dispute under the ID Act will be of no consequence while deciding the question arising under the Act in question. The issue was, therefore, required to be decided independently and de hors the proceedings decided under the ID Act23. Since the High Court did not notice the definition of employee defined under Section 2(f) of the Act and proceeded to pass the impugned order only in the light of finding recorded in the proceedings arising under the ID Act in the order dated 15.05.2013 passed in W.P. No.72314 of 2010, the impugned order is rendered bad in law and, therefore, calls for interference in this appeal.
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National Textile Corporation (Mah. North) Limited Vs. Khushalchand Bissessardas Daga
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the respondent. In the books of the Company these would be shown as advances made to Messrs Harakchand Mohanlal against the cotton said to be in transit. As the cotton was not received by the Company, ultimately a large amount would be outstanding against Messrs Harakchand Mohanlal, but neither in the books of account of the Company nor in any of its other books or papers would it ever appear that the moneys advanced to messrs Harakchand Mohanlal had gone into the pockets of the respondent. No officer or member of the Company nor even a director, unless he was a privy to the fraud, could have knowledge of this type of fraud practised by the respondent. It was sought to be argued by Mr. Mehta, learned Counsel for the respondent, that the Company had knowledge of the fraud because the auditors of the Company had raised certain objections. It was also sought to be argued by Mr. Mehta that the Company had knowledge because the Manager of the Company, J.P. Dordi, had written two letters dated October 1, 1958 and May 20, 1958 respectively to the respondent. It was further contended by Mr. Mehta that when the Central Government appointed a Committee to investigate into the closure of the mills, the Central Government came to know about the respondents fraud and, therefore, the Company must be deemed to have knowledge of the fraud. None of these contentions need detain us long. The auditors objections related to the Board of Directors allowing the amount due from Messrs Harakchand Mohanlal to remain outstanding and to the failure of the Directors to take steps to recover such amount. From this it does not and cannot follow that the auditors knew that the amounts outstanding against Messrs Harakchand Mohanlal had gone into the coffers of the respondent. The theme of both the said letters of Dordi related to the black position which faced the mills by reason of paucity of funds, and in each of these two letters Dordi had made an earnest appeal to the respondent to recover the amounts due from Messrs Harakchand Mohanlal. The very fact that the auditors and the Manager wanted the Directors to recover the outstandings of Messrs Harakchand Mohanlal shows that the were not and could not be aware that these amounts had really been taken away by the respondent. The investigation which was conducted by the Central Government prior to the issue of the notification under section 18 of the Industries (Development and Regulation) Act, 1951, was for the purposes specified in section 15 of the said Act. It was not an investigation into the fraud committed by the respondent. The object of the said Act was to provide for the development and regulation of certain industries set our in the First Schedule to the said Act. As a result of the enquiry which was triggered by the closure of the mills, the Central Government came to the conclusion that the undertaking, namely the Company, was being managed in a manner highly detrimental to the scheduled industry, namely, textile industry, and the management of the Company was vested by the Central government in the Authorised Controller so that the mills could be revived. The question of the knowledge on the part of the directors of the fraud practised by the respondent is irrelevant. If they were not aware of the fraud practised by the respondent, they themselves were victims of such fraud and dupes of the respondent. If they or any of them knew of the fraud and took no steps with respect thereto, they became privy to the fraud and privy to concealing the knowledge of it from the company. The question is when was anyone in charge of the management of the Company who was not a party to the fraud came to learn about it. On June 25, 1969 all books, papers, vouchers and documents of the Company, including the books of account and the minute-books of the meeting of the Board of Directors, were seized by the police and continued to remain in the custody of the police. Thereafter on July 18, 1959 Nevatia was appointed Authorised Controller. No books of account or other relevant documents or papers were available to Nevatia, and even had they been available, all that Nevatia would have discovered from them would have been that a large amount was due to the Company from Messrs Harakchand Mohanlal. That the respondent had committed criminal breach of trust in respect of the property of the Company and for the purpose of the commission of such fraud had entered into a criminal conspiracy came to light only when a copy of the charge-sheet which was filed by the police came to the knowledge of the Authorised Controller Nevatia. The charge-sheet was filed in Court on March 7, 1960 and a copy of it was forwarded to the Company and was received on March 11, 1960 by the said Desai who after the issue of the notification under section 18-A of the Industrial (Development and Regulation) Act, was appointed by Nevatia as his Secretary. Desai thereafter forwarded the said copy of the charge-sheet, but in no event could it have been prior to March 11, 1960 when Desai himself received the said copy. The period of limitation must, therefore, be taken to have commenced on March 11, 1960. The suit having been filed on February 9, 1963 was, therefore, well within time, whether Article 120 or Article 95 applied. On this finding, the entire claim of the appellants would be in time, and in view of what we have held earlier that the appellants were entitled to continue the suit, a decree should have been passed in favour of the appellants in the sum claimed by them less a sum of Rs. 38,000 in respect of which there was no evidence and which position has been accepted by Mr. Chinoy, learned Counsel for the appellants. This appeal must, therefore, succeed.
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1[ds]If they are right in this, the period of limitation would not begin to run until the Company obtained knowledge of the fraud, and it would be immaterial whether Article 95 or Article 120 applied, because in either event the suit would be in time since it was filed within three years of the date on which according to the plaint the Company acquired knowledge of the fraud. If, however, Article 36 applies, the suit would be barred by limitation, because according to the plaint the Company came to learn about the fraud of the respondent more than two years prior to the date of the suit. Turning, therefore, first to Article 36, the first condition for the applicability of Article 36 is that the malfeasance, misfeasance or nonfeasance must be independent of contract, which is not the case there as will be presently shown. Contentions similar to those taken before us were advanced before a Division Bench of this Court in (Govind Narayan Kakada v. Rangnath Gopal Rajopadhye)1, I.L.R. 1930(54) Bom. 226. In that case the liquidator of a bank filed an application under section 235 of the Indian Companies Act, 1913, to recover from the agents and directors of the bank various sums of money on the ground of breach of trust, negligence and misfeasance, resulting in loss to the bank. It was contended that the said application was barred by the law of limitation. The Division Bench held that neither Article 36 nor Article 115 nor Article 116 of the Indian Limitation Act applied and the application was governed by Article 120. Marten, C.J., disposed of the contention based upon Article 36 in these words (at pp.:"As regards Article 36, I feel no difficulty. In my judgment the present claim against the Directors for misfeasance or breach of trust is clearly not independent of contract and consequently Article 36 does not apply. In this respect, therefore, I agree with the view of the Allahabad High Court in the matter of the (Union Bank, Allahabad, Limited)2, 1925(47) All. 669, in preference to that expressed by the Lahore High Court in (Bhim Singh v. Liquidator, Union Bank of India)3, 1926(8) Lah. 167. I say this because the relations between the Bank and its Directors are in part governed by numerous Articles in the Articles of Association, including their qualification shares and remuneration, and indeed the very indemnity which they are relying in this case. In my opinion these articles constitute part, though not the whole, of a contract between the Company and its Directors."As we have seen, the respondent was not only a Director but the Managing Director of the Company. Further, he had entered into an agreement dated December 18, 1956 with the Company containing the terms and conditions of his appointment as Managing Director. Under Clause 2 of the said agreement the respondent had agreed to manage the business and affairs of the Company faithfully, diligently, honestly and to the best of his ability and power. The fraud and breaches of trust committed by the respondent cannot, therefore, be said to be independent of contract. In (India Sugar and Henneries Ltd. v. Estate of the late V. Ramalingam)4, A.I.R. 1953 Mad. 694, it was held that Article 36 contemplates an action for compensation for a wrong in the nature of a tort and that the suit to which that article would apply is a suit for compensation, but if the suit was for the recovery of a particular property or a sum of money as such, then the suit cannot fall within the scope of Article 36. The case before the Madras High Court was also the case of a director and the sole managing agent of a company who had gained for himself a pecuniary advantage by availing himself of his fiduciary character. The Court held that in view of the nature of the claim made against him, the suit was under section 88 of the Indian Trusts Act and the only article applicable to such a suit was Article 120.15. We are in respectful agreement with what was laid down in the above two cases, and in our opinion the trial Court was right in holding that Article 120 applied to the suit.The evidence led by the appellants which was not controverted by the respondent clearly establishes that fraud was committed right from the date when the said proprietary concern of Messrs Harakchand Mohanlal was formed up to the end and that the whole thing formed but one integral fraud having as its central object the embezzlement of the funds of the Company by the respondent. In a fraud so conceived, planned and systematically carried out over a period of three years, such act in linked with the other and forms part of a continuous chain and must be taken as the components of an integrated whole. In such a case it is not open to the court to pick up individual acts of fraud and apply to each the period of limitation and say that the period of limitation commenced from the date of the commission of that particular act. Here, there was no question of any initial fraud or any fraud committed to cover up such fraud. The fraud lay in Messrs Harakchand Mohanlal taking away by way of advances moneys from the Company against cotton alleged to be in transit and routing the moneys to the respondent. In the books of the Company these would be shown as advances made to Messrs Harakchand Mohanlal against the cotton said to be in transit. As the cotton was not received by the Company, ultimately a large amount would be outstanding against Messrs Harakchand Mohanlal, but neither in the books of account of the Company nor in any of its other books or papers would it ever appear that the moneys advanced to messrs Harakchand Mohanlal had gone into the pockets of the respondent. No officer or member of the Company nor even a director, unless he was a privy to the fraud, could have knowledge of this type of fraud practised by the respondent. It was sought to be argued by Mr. Mehta, learned Counsel for the respondent, that the Company had knowledge of the fraud because the auditors of the Company had raised certain objections. It was also sought to be argued by Mr. Mehta that the Company had knowledge because the Manager of the Company, J.P. Dordi, had written two letters dated October 1, 1958 and May 20, 1958 respectively to the respondent. It was further contended by Mr. Mehta that when the Central Government appointed a Committee to investigate into the closure of the mills, the Central Government came to know about the respondents fraud and, therefore, the Company must be deemed to have knowledge of the fraud. None of these contentions need detain us long. The auditors objections related to the Board of Directors allowing the amount due from Messrs Harakchand Mohanlal to remain outstanding and to the failure of the Directors to take steps to recover such amount. From this it does not and cannot follow that the auditors knew that the amounts outstanding against Messrs Harakchand Mohanlal had gone into the coffers of the respondent. The theme of both the said letters of Dordi related to the black position which faced the mills by reason of paucity of funds, and in each of these two letters Dordi had made an earnest appeal to the respondent to recover the amounts due from Messrs Harakchand Mohanlal. The very fact that the auditors and the Manager wanted the Directors to recover the outstandings of Messrs Harakchand Mohanlal shows that the were not and could not be aware that these amounts had really been taken away by the respondent. The investigation which was conducted by the Central Government prior to the issue of the notification under section 18 of the Industries (Development and Regulation) Act, 1951, was for the purposes specified in section 15 of the said Act. It was not an investigation into the fraud committed by the respondent. The object of the said Act was to provide for the development and regulation of certain industries set our in the First Schedule to the said Act. As a result of the enquiry which was triggered by the closure of the mills, the Central Government came to the conclusion that the undertaking, namely the Company, was being managed in a manner highly detrimental to the scheduled industry, namely, textile industry, and the management of the Company was vested by the Central government in the Authorised Controller so that the mills could be revived. The question of the knowledge on the part of the directors of the fraud practised by the respondent is irrelevant. If they were not aware of the fraud practised by the respondent, they themselves were victims of such fraud and dupes of the respondent. If they or any of them knew of the fraud and took no steps with respect thereto, they became privy to the fraud and privy to concealing the knowledge of it from the company. The question is when was anyone in charge of the management of the Company who was not a party to the fraud came to learn about it. On June 25, 1969 all books, papers, vouchers and documents of the Company, including the books of account and theof the meeting of the Board of Directors, were seized by the police and continued to remain in the custody of the police. Thereafter on July 18, 1959 Nevatia was appointed Authorised Controller. No books of account or other relevant documents or papers were available to Nevatia, and even had they been available, all that Nevatia would have discovered from them would have been that a large amount was due to the Company from Messrs Harakchand Mohanlal. That the respondent had committed criminal breach of trust in respect of the property of the Company and for the purpose of the commission of such fraud had entered into a criminal conspiracy came to light only when a copy of thewhich was filed by the police came to the knowledge of the Authorised Controller Nevatia. Thewas filed in Court on March 7, 1960 and a copy of it was forwarded to the Company and was received on March 11, 1960 by the said Desai who after the issue of the notification under sectionof the Industrial (Development and Regulation) Act, was appointed by Nevatia as his Secretary. Desai thereafter forwarded the said copy of thebut in no event could it have been prior to March 11, 1960 when Desai himself received the said copy. The period of limitation must, therefore, be taken to have commenced on March 11, 1960. The suit having been filed on February 9, 1963 was, therefore, well within time, whether Article 120 or Article 95 applied. On this finding, the entire claim of the appellants would be in time, and in view of what we have held earlier that the appellants were entitled to continue the suit, a decree should have been passed in favour of the appellants in the sum claimed by them less a sum of Rs. 38,000 in respect of which there was no evidence and which position has been accepted by Mr. Chinoy, learned Counsel for the appellants. This appeal must, therefore, succeed.
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the respondent. In the books of the Company these would be shown as advances made to Messrs Harakchand Mohanlal against the cotton said to be in transit. As the cotton was not received by the Company, ultimately a large amount would be outstanding against Messrs Harakchand Mohanlal, but neither in the books of account of the Company nor in any of its other books or papers would it ever appear that the moneys advanced to messrs Harakchand Mohanlal had gone into the pockets of the respondent. No officer or member of the Company nor even a director, unless he was a privy to the fraud, could have knowledge of this type of fraud practised by the respondent. It was sought to be argued by Mr. Mehta, learned Counsel for the respondent, that the Company had knowledge of the fraud because the auditors of the Company had raised certain objections. It was also sought to be argued by Mr. Mehta that the Company had knowledge because the Manager of the Company, J.P. Dordi, had written two letters dated October 1, 1958 and May 20, 1958 respectively to the respondent. It was further contended by Mr. Mehta that when the Central Government appointed a Committee to investigate into the closure of the mills, the Central Government came to know about the respondents fraud and, therefore, the Company must be deemed to have knowledge of the fraud. None of these contentions need detain us long. The auditors objections related to the Board of Directors allowing the amount due from Messrs Harakchand Mohanlal to remain outstanding and to the failure of the Directors to take steps to recover such amount. From this it does not and cannot follow that the auditors knew that the amounts outstanding against Messrs Harakchand Mohanlal had gone into the coffers of the respondent. The theme of both the said letters of Dordi related to the black position which faced the mills by reason of paucity of funds, and in each of these two letters Dordi had made an earnest appeal to the respondent to recover the amounts due from Messrs Harakchand Mohanlal. The very fact that the auditors and the Manager wanted the Directors to recover the outstandings of Messrs Harakchand Mohanlal shows that the were not and could not be aware that these amounts had really been taken away by the respondent. The investigation which was conducted by the Central Government prior to the issue of the notification under section 18 of the Industries (Development and Regulation) Act, 1951, was for the purposes specified in section 15 of the said Act. It was not an investigation into the fraud committed by the respondent. The object of the said Act was to provide for the development and regulation of certain industries set our in the First Schedule to the said Act. As a result of the enquiry which was triggered by the closure of the mills, the Central Government came to the conclusion that the undertaking, namely the Company, was being managed in a manner highly detrimental to the scheduled industry, namely, textile industry, and the management of the Company was vested by the Central government in the Authorised Controller so that the mills could be revived. The question of the knowledge on the part of the directors of the fraud practised by the respondent is irrelevant. If they were not aware of the fraud practised by the respondent, they themselves were victims of such fraud and dupes of the respondent. If they or any of them knew of the fraud and took no steps with respect thereto, they became privy to the fraud and privy to concealing the knowledge of it from the company. The question is when was anyone in charge of the management of the Company who was not a party to the fraud came to learn about it. On June 25, 1969 all books, papers, vouchers and documents of the Company, including the books of account and the minute-books of the meeting of the Board of Directors, were seized by the police and continued to remain in the custody of the police. Thereafter on July 18, 1959 Nevatia was appointed Authorised Controller. No books of account or other relevant documents or papers were available to Nevatia, and even had they been available, all that Nevatia would have discovered from them would have been that a large amount was due to the Company from Messrs Harakchand Mohanlal. That the respondent had committed criminal breach of trust in respect of the property of the Company and for the purpose of the commission of such fraud had entered into a criminal conspiracy came to light only when a copy of the charge-sheet which was filed by the police came to the knowledge of the Authorised Controller Nevatia. The charge-sheet was filed in Court on March 7, 1960 and a copy of it was forwarded to the Company and was received on March 11, 1960 by the said Desai who after the issue of the notification under section 18-A of the Industrial (Development and Regulation) Act, was appointed by Nevatia as his Secretary. Desai thereafter forwarded the said copy of the charge-sheet, but in no event could it have been prior to March 11, 1960 when Desai himself received the said copy. The period of limitation must, therefore, be taken to have commenced on March 11, 1960. The suit having been filed on February 9, 1963 was, therefore, well within time, whether Article 120 or Article 95 applied. On this finding, the entire claim of the appellants would be in time, and in view of what we have held earlier that the appellants were entitled to continue the suit, a decree should have been passed in favour of the appellants in the sum claimed by them less a sum of Rs. 38,000 in respect of which there was no evidence and which position has been accepted by Mr. Chinoy, learned Counsel for the appellants. This appeal must, therefore, succeed.
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alleged to be in transit and routing the moneys to the respondent. In the books of the Company these would be shown as advances made to Messrs Harakchand Mohanlal against the cotton said to be in transit. As the cotton was not received by the Company, ultimately a large amount would be outstanding against Messrs Harakchand Mohanlal, but neither in the books of account of the Company nor in any of its other books or papers would it ever appear that the moneys advanced to messrs Harakchand Mohanlal had gone into the pockets of the respondent. No officer or member of the Company nor even a director, unless he was a privy to the fraud, could have knowledge of this type of fraud practised by the respondent. It was sought to be argued by Mr. Mehta, learned Counsel for the respondent, that the Company had knowledge of the fraud because the auditors of the Company had raised certain objections. It was also sought to be argued by Mr. Mehta that the Company had knowledge because the Manager of the Company, J.P. Dordi, had written two letters dated October 1, 1958 and May 20, 1958 respectively to the respondent. It was further contended by Mr. Mehta that when the Central Government appointed a Committee to investigate into the closure of the mills, the Central Government came to know about the respondents fraud and, therefore, the Company must be deemed to have knowledge of the fraud. None of these contentions need detain us long. The auditors objections related to the Board of Directors allowing the amount due from Messrs Harakchand Mohanlal to remain outstanding and to the failure of the Directors to take steps to recover such amount. From this it does not and cannot follow that the auditors knew that the amounts outstanding against Messrs Harakchand Mohanlal had gone into the coffers of the respondent. The theme of both the said letters of Dordi related to the black position which faced the mills by reason of paucity of funds, and in each of these two letters Dordi had made an earnest appeal to the respondent to recover the amounts due from Messrs Harakchand Mohanlal. The very fact that the auditors and the Manager wanted the Directors to recover the outstandings of Messrs Harakchand Mohanlal shows that the were not and could not be aware that these amounts had really been taken away by the respondent. The investigation which was conducted by the Central Government prior to the issue of the notification under section 18 of the Industries (Development and Regulation) Act, 1951, was for the purposes specified in section 15 of the said Act. It was not an investigation into the fraud committed by the respondent. The object of the said Act was to provide for the development and regulation of certain industries set our in the First Schedule to the said Act. As a result of the enquiry which was triggered by the closure of the mills, the Central Government came to the conclusion that the undertaking, namely the Company, was being managed in a manner highly detrimental to the scheduled industry, namely, textile industry, and the management of the Company was vested by the Central government in the Authorised Controller so that the mills could be revived. The question of the knowledge on the part of the directors of the fraud practised by the respondent is irrelevant. If they were not aware of the fraud practised by the respondent, they themselves were victims of such fraud and dupes of the respondent. If they or any of them knew of the fraud and took no steps with respect thereto, they became privy to the fraud and privy to concealing the knowledge of it from the company. The question is when was anyone in charge of the management of the Company who was not a party to the fraud came to learn about it. On June 25, 1969 all books, papers, vouchers and documents of the Company, including the books of account and theof the meeting of the Board of Directors, were seized by the police and continued to remain in the custody of the police. Thereafter on July 18, 1959 Nevatia was appointed Authorised Controller. No books of account or other relevant documents or papers were available to Nevatia, and even had they been available, all that Nevatia would have discovered from them would have been that a large amount was due to the Company from Messrs Harakchand Mohanlal. That the respondent had committed criminal breach of trust in respect of the property of the Company and for the purpose of the commission of such fraud had entered into a criminal conspiracy came to light only when a copy of thewhich was filed by the police came to the knowledge of the Authorised Controller Nevatia. Thewas filed in Court on March 7, 1960 and a copy of it was forwarded to the Company and was received on March 11, 1960 by the said Desai who after the issue of the notification under sectionof the Industrial (Development and Regulation) Act, was appointed by Nevatia as his Secretary. Desai thereafter forwarded the said copy of thebut in no event could it have been prior to March 11, 1960 when Desai himself received the said copy. The period of limitation must, therefore, be taken to have commenced on March 11, 1960. The suit having been filed on February 9, 1963 was, therefore, well within time, whether Article 120 or Article 95 applied. On this finding, the entire claim of the appellants would be in time, and in view of what we have held earlier that the appellants were entitled to continue the suit, a decree should have been passed in favour of the appellants in the sum claimed by them less a sum of Rs. 38,000 in respect of which there was no evidence and which position has been accepted by Mr. Chinoy, learned Counsel for the appellants. This appeal must, therefore, succeed.
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Life Insurance Corporation Of India Vs. Mani Ram
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abundantly clear that payment of premium due had to be made within a grace period of one month. If such payment was made within the said period, the policy would be treated as valid and the assured would be paid the amount to which he was entitled after deducting the premium amount. But it was also made clear that if the premium was not paid before the expiry of the days of grace, the policy would lapse. As we have already observed hereinabove, the material date was not the date of deposit/payment of premium amount which was August 21, 1995, but the date of policy which was April 28, 1995. Since it was yearly, the payment was due on April 28, 1996, but the assured was entitled to grace period of one month up to May 28,1996. Neither the premium was paid on April 28, 1996 nor on May 28, 1996. As per condition No. 2, policy lapsed on May 28, 1996. In the eye of law, there was no subsisting policy, on August 2, 1996. Insurance Company was, therefore, wholly justified in rejecting the claim of the complainant and no exception can be taken against such a decision.15. The learned counsel for the respondent no doubt relied on the decision of this Court in Dharam Vir Anand. The State Commission also referred to the said decision and observed that the point was covered by the ration laid down therein and the complainant was entitled to the benefit of that decision. In our opinion, however, the submission of the learned counsel for the Insurance Company is well-founded that it was in the light of the fact-situation of that case that the Court decided the matter in favour of the complainant. 16. In Dharam Vir Anand, the complainant had taken a policy of insurance on the life of his minor daughter. The policy was issued on March 31, 1990. The risk under the policy was, however, back-dated at the request of the complainant taking advantage of the option given to him in that regard by the Insurance Company which was May 10, 1989 and the premium was paid. On November 15, 1992, the assured committed suicide. The complainant lodged a claim which was refuted by the Company. The question before this Court was whether on that date i.e. November 15, 1992, the policy was subsisting or not? If the date of issuance of policy was to be taken into account, the policy was subsisting. But if back-date would be considered as relevant and material, three years were over and there was no subsisting policy. The Court considered Clause 4-B of the policy which read as under:- "4-B. Notwithstanding anything mentioned to the contrary, it is hereby declared and agreed that in the event of death of life assured occurring as a result of intentional self-injury, suicide or attempted suicide, insanity, accident other than an accident in a public place or murder at any time, on or after the date on which the risk under the policy has commenced but before the expiry of three years from the date of this policy, the Corporations liability shall be limited to the sum equal to the total amount of premiums (exclusive extra of premiums, if any), paid under the policy without interest. Provided that in case the life assured shall commit suicide before the expiry of one year reckoned from the date of this policy, the provisions of the clause under the heading "Suicide" printed on the back of the policy". (emphasis supplied) 17. The Court observed that Clause 4-B made it crystal clear that the date on which the risk under the policy commenced was different from the date of the policy. The Court took into consideration two expressions, viz., "the date on which the risk under the policy has commenced" and "the date of the policy". The Court held that since two expressions were used which obviously referred to two different periods, effect must be given to both of them. If the contention of the Insurance Company that the relevant date was the date on which the risk under the policy had commenced alone would be considered, the second expression ("the date of the policy") would become redundant. The Court noted the argument on behalf of the Insurance Company that the second date had a limited application for the purpose of giving certain tax relief but negatived it. It was further observed by this Court that in construing contractual clauses, the words and terms therein must be given effect to and a part of the contract cannot be rendered meaningless while construing and interpreting the other part of the same contract. According to the Court, when the parties agree to the terms of the contract, it was not open to content that a particular term was never intended to be acted upon. Accordingly, this Court held that on November 15, 1992, the policy was in existence and the respondent-claimant was entitled to the amount. 18. In the instant case, Condition 2 expressly provided the period during which the payment was to be made. it also in no uncertain terms stated that if premium was not paid before the expiry of grace period, the policy would lapse. In our view, the ratio in Dharam Vir Anand would support the Insurance Company rather than the complainant. If all the terms and conditions of the policy (contract between the parties) have to be kept in mind and given effect to, acceptance of argument on behalf of the complainant would make the last part of Condition 2 redundant, otiose and inoperative; and a court of law cannot construe a document in the manner suggested by the counsel for the complainant. As the premium was due on April 28, 1996 and was not paid till May 28, 1996, the policy lapsed. The Fora below hence, committed an error of law in allowing the complaint of the respondent herein and the orders are liable to be set aside.
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1[ds]12. So far as the factual position is concerned, there is no dispute between the parties. Deceased Ashok Kumar was insured by the Insurance Company and the first premium was paid on August 21, 1995. At the request of the insured, however, the policy was back-dated with effect from April 28, 1995. In our opinion, therefore, the learned counsel for the Insurance Company is right in submitting that one year came to an end on April 28, 1996 and the insured was liable to pay premium on that date as it became due and payable. Taking into account grace period of one month, premium amount ought to have been paid latest by May 28, 1996. Admittedly, no such payment was made either in April, 1996 or in May, 1996. We are impressed by the argument of the learned counsel for the Insurance Company that in the circumstances, the policy lapsed on May 28, 1996.From the above condition, it is abundantly clear that payment of premium due had to be made within a grace period of one month. If such payment was made within the said period, the policy would be treated as valid and the assured would be paid the amount to which he was entitled after deducting the premium amount. But it was also made clear that if the premium was not paid before the expiry of the days of grace, the policy would lapse. As we have already observed hereinabove, the material date was not the date of deposit/payment of premium amount which was August 21, 1995, but the date of policy which was April 28, 1995. Since it was yearly, the payment was due on April 28, 1996, but the assured was entitled to grace period of one month up to May 28,1996. Neither the premium was paid on April 28, 1996 nor on May 28, 1996. As per condition No. 2, policy lapsed on May 28, 1996. In the eye of law, there was no subsisting policy, on August 2, 1996. Insurance Company was, therefore, wholly justified in rejecting the claim of the complainant and no exception can be taken against such a decision.15. The learned counsel for the respondent no doubt relied on the decision of this Court in Dharam Vir Anand. The State Commission also referred to the said decision and observed that the point was covered by the ration laid down therein and the complainant was entitled to the benefit of that decision. In our opinion, however, the submission of the learned counsel for the Insurance Company is well-founded that it was in the light of the fact-situation of that case that the Court decided the matter in favour of the complainant.In the instant case, Condition 2 expressly provided the period during which the payment was to be made. it also in no uncertain terms stated that if premium was not paid before the expiry of grace period, the policy would lapse. In our view, the ratio in Dharam Vir Anand would support the Insurance Company rather than the complainant. If all the terms and conditions of the policy (contract between the parties) have to be kept in mind and given effect to, acceptance of argument on behalf of the complainant would make the last part of Condition 2 redundant, otiose and inoperative; and a court of law cannot construe a document in the manner suggested by the counsel for the complainant. As the premium was due on April 28, 1996 and was not paid till May 28, 1996, the policy lapsed. The Fora below hence, committed an error of law in allowing the complaint of the respondent herein and the orders are liable to be set aside.13. In this connection, it may be profitable to refer to the terms and conditions of the policy. The policy stated that the date of commencement was April 28, 1995 and the date of maturity would be April 28, 2010 as it was for a period of fifteen years. It is further stated that the policy of assurance "shall be subject to the conditions and privileges" printed on the back of the policy. On the back of the policy, those conditions and privileges have been printed. Condition 2 thereof, is material for our purpose and reads"Payment of premium: A grace period of one month i.e. not less than 30 days will be allowed for payment of yearly,or quarterly premiums and 15 days for monthly premiums. If death occurs within this period and before the payment of the premium then due, the Policy will be valid and the sum assured paid after deduction of the premium as also the unpaid premium/s falling due before the next anniversary of this Policy. If the premium is not paid before the expiry of the days of grace, the Policy lapses." (emphasis supplied)
| 1 | 2,921 | 905 |
### 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:
abundantly clear that payment of premium due had to be made within a grace period of one month. If such payment was made within the said period, the policy would be treated as valid and the assured would be paid the amount to which he was entitled after deducting the premium amount. But it was also made clear that if the premium was not paid before the expiry of the days of grace, the policy would lapse. As we have already observed hereinabove, the material date was not the date of deposit/payment of premium amount which was August 21, 1995, but the date of policy which was April 28, 1995. Since it was yearly, the payment was due on April 28, 1996, but the assured was entitled to grace period of one month up to May 28,1996. Neither the premium was paid on April 28, 1996 nor on May 28, 1996. As per condition No. 2, policy lapsed on May 28, 1996. In the eye of law, there was no subsisting policy, on August 2, 1996. Insurance Company was, therefore, wholly justified in rejecting the claim of the complainant and no exception can be taken against such a decision.15. The learned counsel for the respondent no doubt relied on the decision of this Court in Dharam Vir Anand. The State Commission also referred to the said decision and observed that the point was covered by the ration laid down therein and the complainant was entitled to the benefit of that decision. In our opinion, however, the submission of the learned counsel for the Insurance Company is well-founded that it was in the light of the fact-situation of that case that the Court decided the matter in favour of the complainant. 16. In Dharam Vir Anand, the complainant had taken a policy of insurance on the life of his minor daughter. The policy was issued on March 31, 1990. The risk under the policy was, however, back-dated at the request of the complainant taking advantage of the option given to him in that regard by the Insurance Company which was May 10, 1989 and the premium was paid. On November 15, 1992, the assured committed suicide. The complainant lodged a claim which was refuted by the Company. The question before this Court was whether on that date i.e. November 15, 1992, the policy was subsisting or not? If the date of issuance of policy was to be taken into account, the policy was subsisting. But if back-date would be considered as relevant and material, three years were over and there was no subsisting policy. The Court considered Clause 4-B of the policy which read as under:- "4-B. Notwithstanding anything mentioned to the contrary, it is hereby declared and agreed that in the event of death of life assured occurring as a result of intentional self-injury, suicide or attempted suicide, insanity, accident other than an accident in a public place or murder at any time, on or after the date on which the risk under the policy has commenced but before the expiry of three years from the date of this policy, the Corporations liability shall be limited to the sum equal to the total amount of premiums (exclusive extra of premiums, if any), paid under the policy without interest. Provided that in case the life assured shall commit suicide before the expiry of one year reckoned from the date of this policy, the provisions of the clause under the heading "Suicide" printed on the back of the policy". (emphasis supplied) 17. The Court observed that Clause 4-B made it crystal clear that the date on which the risk under the policy commenced was different from the date of the policy. The Court took into consideration two expressions, viz., "the date on which the risk under the policy has commenced" and "the date of the policy". The Court held that since two expressions were used which obviously referred to two different periods, effect must be given to both of them. If the contention of the Insurance Company that the relevant date was the date on which the risk under the policy had commenced alone would be considered, the second expression ("the date of the policy") would become redundant. The Court noted the argument on behalf of the Insurance Company that the second date had a limited application for the purpose of giving certain tax relief but negatived it. It was further observed by this Court that in construing contractual clauses, the words and terms therein must be given effect to and a part of the contract cannot be rendered meaningless while construing and interpreting the other part of the same contract. According to the Court, when the parties agree to the terms of the contract, it was not open to content that a particular term was never intended to be acted upon. Accordingly, this Court held that on November 15, 1992, the policy was in existence and the respondent-claimant was entitled to the amount. 18. In the instant case, Condition 2 expressly provided the period during which the payment was to be made. it also in no uncertain terms stated that if premium was not paid before the expiry of grace period, the policy would lapse. In our view, the ratio in Dharam Vir Anand would support the Insurance Company rather than the complainant. If all the terms and conditions of the policy (contract between the parties) have to be kept in mind and given effect to, acceptance of argument on behalf of the complainant would make the last part of Condition 2 redundant, otiose and inoperative; and a court of law cannot construe a document in the manner suggested by the counsel for the complainant. As the premium was due on April 28, 1996 and was not paid till May 28, 1996, the policy lapsed. The Fora below hence, committed an error of law in allowing the complaint of the respondent herein and the orders are liable to be set aside.
### Response:
1
### Explanation:
12. So far as the factual position is concerned, there is no dispute between the parties. Deceased Ashok Kumar was insured by the Insurance Company and the first premium was paid on August 21, 1995. At the request of the insured, however, the policy was back-dated with effect from April 28, 1995. In our opinion, therefore, the learned counsel for the Insurance Company is right in submitting that one year came to an end on April 28, 1996 and the insured was liable to pay premium on that date as it became due and payable. Taking into account grace period of one month, premium amount ought to have been paid latest by May 28, 1996. Admittedly, no such payment was made either in April, 1996 or in May, 1996. We are impressed by the argument of the learned counsel for the Insurance Company that in the circumstances, the policy lapsed on May 28, 1996.From the above condition, it is abundantly clear that payment of premium due had to be made within a grace period of one month. If such payment was made within the said period, the policy would be treated as valid and the assured would be paid the amount to which he was entitled after deducting the premium amount. But it was also made clear that if the premium was not paid before the expiry of the days of grace, the policy would lapse. As we have already observed hereinabove, the material date was not the date of deposit/payment of premium amount which was August 21, 1995, but the date of policy which was April 28, 1995. Since it was yearly, the payment was due on April 28, 1996, but the assured was entitled to grace period of one month up to May 28,1996. Neither the premium was paid on April 28, 1996 nor on May 28, 1996. As per condition No. 2, policy lapsed on May 28, 1996. In the eye of law, there was no subsisting policy, on August 2, 1996. Insurance Company was, therefore, wholly justified in rejecting the claim of the complainant and no exception can be taken against such a decision.15. The learned counsel for the respondent no doubt relied on the decision of this Court in Dharam Vir Anand. The State Commission also referred to the said decision and observed that the point was covered by the ration laid down therein and the complainant was entitled to the benefit of that decision. In our opinion, however, the submission of the learned counsel for the Insurance Company is well-founded that it was in the light of the fact-situation of that case that the Court decided the matter in favour of the complainant.In the instant case, Condition 2 expressly provided the period during which the payment was to be made. it also in no uncertain terms stated that if premium was not paid before the expiry of grace period, the policy would lapse. In our view, the ratio in Dharam Vir Anand would support the Insurance Company rather than the complainant. If all the terms and conditions of the policy (contract between the parties) have to be kept in mind and given effect to, acceptance of argument on behalf of the complainant would make the last part of Condition 2 redundant, otiose and inoperative; and a court of law cannot construe a document in the manner suggested by the counsel for the complainant. As the premium was due on April 28, 1996 and was not paid till May 28, 1996, the policy lapsed. The Fora below hence, committed an error of law in allowing the complaint of the respondent herein and the orders are liable to be set aside.13. In this connection, it may be profitable to refer to the terms and conditions of the policy. The policy stated that the date of commencement was April 28, 1995 and the date of maturity would be April 28, 2010 as it was for a period of fifteen years. It is further stated that the policy of assurance "shall be subject to the conditions and privileges" printed on the back of the policy. On the back of the policy, those conditions and privileges have been printed. Condition 2 thereof, is material for our purpose and reads"Payment of premium: A grace period of one month i.e. not less than 30 days will be allowed for payment of yearly,or quarterly premiums and 15 days for monthly premiums. If death occurs within this period and before the payment of the premium then due, the Policy will be valid and the sum assured paid after deduction of the premium as also the unpaid premium/s falling due before the next anniversary of this Policy. If the premium is not paid before the expiry of the days of grace, the Policy lapses." (emphasis supplied)
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Shamrao Vithal Co-Operative Bank Ltd Vs. Kasargod Pandhuranga Mallya
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Registrar might require in respect of a co-operative society actually registered in that State. Sub-section (3) gives a limited control to the Registrar of Co-operative Societies of the State in which a branch or place of business of a co-operative society is established by authorising him to exercise in respect of that branch or place of business of a co-operative society is established by authorising him to exercise in respect of that branch or place of business any powers of audit and of inspection which he might exercise in respect of a co-operative society actually registered in that State.5. The contention which has been advanced on behalf of the appellant society by its learned counsel, Mr. Naik, is that as the appellant was registered in Bombay, it is the Bombay Act which would govern the appellant society for purposes of registration, control and dissolution. It is not disputed that the adjudication of a claim by the appellant against its members does not fall under the head "registration" or "dissolution." What is, however urged is that the word control comprehends within itself the adjudication of a claim made by the society against its members. Such a claim having been made by the appellant against the respondent, the same could, according to the learned counsel, have been adjudicated upon under the section 54 of the Bombay Act. The award made by the Deputy Registrar of Co-operative Societies, Bombay in the circumstances of counsel submits, did not suffer from any legal infirmity.6. There is, in our opinion, no force in the above contention because we do not agree with the underlying assumption of the above argument that the word control comprehends within itself the adjudication of a claim made by a co-operative society its members. The appellant society, as would appear from the resume of facts given above, established a branch in Managalore and had dealings there with the respondent who was a resident of Kasaragod. As the objects of the appellant society were extended to the Presidency of Madras, it should, in view of sub-section (1) of section 2 of the Central Act, be deemed to have been registered under the law in force in the Presidency of Madras relating to co-operative societies. The law which was then in force, according to Mr. Naik, was the Madras Co-operative Societies Act. 1932 (hereinafter referred to as the Madras Act). Clause (f) of section 2 of that Act defines a registered society to mean a society registered or deemed to be registered under that Act. Section 51 of the Madras Act provides inter alia that if any dispute touching the business of a registered society between a member and that society between a member and the society arises, such dispute shall be referred to the Registrar for decision. Registrar has been defined in clause (g) of section 2 of the Madras Act to mean "a person appointed to perform the duties of a Registrar of Co-operative Societies under this Act and includes a person on whom all or any of the powers of a Registrar under the Act have been conferred."It would, therefore, follow that a dispute between the appellant and the respondent in respect of its dealings relating to its Mangalore branch would normally have to be adjudicated upon by the Registrar appointed under the Madras Act. The fact that for the purpose of control, the appellant society was governed by the Bombay Act would not, in our opinion, justify a departure from the above normal rule. The word control is synonymous with superintendence, management or authority to direct, restrict or regulate (See p. 442 of Words and Phrases (Vol. 9) Permanent Edition).Control is exercised by a superior authority in exercise of its supervisory power. Adjudication of disputes is a judicial or quasi-judicial function and it would, in our opinion, be unduly straining the meaning of the word control to hold that it also covers the adjudication of disputes between a co-operative society and its members. There is a clear distinction between jurisdiction to decide a dispute which is a judicial power and the exercise of control which is an administrative power and it would be wrong to treat the two as identical or equate one with the other.7. Reference has been made on behalf of the appellant to the case of Panchshila Industrial Co-operative Society (Multi-Unit) v. The Gurgaon Central Co-operative Bank Ltd., Gurgaon, (1971) 2 SCC 500 = (AIR 1971 SC 2403 ). In that case, Deputy Registrar of Co-operative Societies, Rohtak had given an award in favour of the respondent bank which was a co-operative society governed by the provisions of Punjab Co-operative Societies Act. The appellant filed an appeal against that award before the Central Registrar. The Central Registrar dismissed the appeal on the ground that he was not the appropriate appellate authority in respect of the said award. On appeal to this Court, the decision of the Central Registrar was affirmed. It was held that the dispute between the parties fell within section 55 of the Punjab Co-operative Societies Act and those provisions were not affected by the Central Act. It would appear from the above that the question involved in that case was entirely different and the appellant can derive no assistance from it.8. Argument has also been advanced that there was no inherent lack of jurisdiction in the Deputy Registrar appointed under the Bombay Act for adjudicating upon the dispute between the parties and that it was at the best a case of lack of territorial jurisdiction. We find ourselves unable to accede to this contention because we are of the opinion that there was inherent lack of jurisdiction in the Registrar appointed under the Bombay Act for dealing with the dispute arising out of the dealings of the Mangalore branch of the appellant society with the respondent. The dispute between the parties as would appear from what has been discussed above, could only be adjudicated upon in accordance with the provisions of the Madras Act.
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0[ds]6. There is, in our opinion, no force in the above contention because we do not agree with the underlying assumption of the above argument that the word control comprehends within itself the adjudication of a claim made by a co-operative society its members. The appellant society, as would appear from the resume of facts given above, established a branch in Managalore and had dealings there with the respondent who was a resident of Kasaragod. As the objects of the appellant society were extended to the Presidency of Madras, it should, in view of sub-section (1) of section 2 of the Central Act, be deemed to have been registered under the law in force in the Presidency of Madras relating to co-operative societies. The law which was then in force, according to Mr. Naik, was the Madras Co-operative Societies Act. 1932 (hereinafter referred to as the Madras Act). Clause (f) of section 2 of that Act defines a registered society to mean a society registered or deemed to be registered under that Act. Section 51 of the Madras Act provides inter alia that if any dispute touching the business of a registered society between a member and that society between a member and the society arises, such dispute shall be referred to the Registrar for decision. Registrar has been defined in clause (g) of section 2 of the Madras Act to mean "a person appointed to perform the duties of a Registrar of Co-operative Societies under this Act and includes a person on whom all or any of the powers of a Registrar under the Act have been conferred."It would, therefore, follow that a dispute between the appellant and the respondent in respect of its dealings relating to its Mangalore branch would normally have to be adjudicated upon by the Registrar appointed under the Madras Act. The fact that for the purpose of control, the appellant society was governed by the Bombay Act would not, in our opinion, justify a departure from the above normal rule. The word control is synonymous with superintendence, management or authority to direct, restrict or regulate (See p. 442 of Words and Phrases (Vol. 9) Permanent Edition).Control is exercised by a superior authority in exercise of its supervisory power. Adjudication of disputes is a judicial or quasi-judicial function and it would, in our opinion, be unduly straining the meaning of the word control to hold that it also covers the adjudication of disputes between a co-operative society and its members. There is a clear distinction between jurisdiction to decide a dispute which is a judicial power and the exercise of control which is an administrative power and it would be wrong to treat the two as identical or equate one with the other.Argument has also been advanced that there was no inherent lack of jurisdiction in the Deputy Registrar appointed under the Bombay Act for adjudicating upon the dispute between the parties and that it was at the best a case of lack of territorial jurisdiction. We find ourselves unable to accede to this contention because we are of the opinion that there was inherent lack of jurisdiction in the Registrar appointed under the Bombay Act for dealing with the dispute arising out of the dealings of the Mangalore branch of the appellant society with the respondent. The dispute between the parties as would appear from what has been discussed above, could only be adjudicated upon in accordance with the provisions of the Madras Act.
| 0 | 2,115 | 637 |
### 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:
Registrar might require in respect of a co-operative society actually registered in that State. Sub-section (3) gives a limited control to the Registrar of Co-operative Societies of the State in which a branch or place of business of a co-operative society is established by authorising him to exercise in respect of that branch or place of business of a co-operative society is established by authorising him to exercise in respect of that branch or place of business any powers of audit and of inspection which he might exercise in respect of a co-operative society actually registered in that State.5. The contention which has been advanced on behalf of the appellant society by its learned counsel, Mr. Naik, is that as the appellant was registered in Bombay, it is the Bombay Act which would govern the appellant society for purposes of registration, control and dissolution. It is not disputed that the adjudication of a claim by the appellant against its members does not fall under the head "registration" or "dissolution." What is, however urged is that the word control comprehends within itself the adjudication of a claim made by the society against its members. Such a claim having been made by the appellant against the respondent, the same could, according to the learned counsel, have been adjudicated upon under the section 54 of the Bombay Act. The award made by the Deputy Registrar of Co-operative Societies, Bombay in the circumstances of counsel submits, did not suffer from any legal infirmity.6. There is, in our opinion, no force in the above contention because we do not agree with the underlying assumption of the above argument that the word control comprehends within itself the adjudication of a claim made by a co-operative society its members. The appellant society, as would appear from the resume of facts given above, established a branch in Managalore and had dealings there with the respondent who was a resident of Kasaragod. As the objects of the appellant society were extended to the Presidency of Madras, it should, in view of sub-section (1) of section 2 of the Central Act, be deemed to have been registered under the law in force in the Presidency of Madras relating to co-operative societies. The law which was then in force, according to Mr. Naik, was the Madras Co-operative Societies Act. 1932 (hereinafter referred to as the Madras Act). Clause (f) of section 2 of that Act defines a registered society to mean a society registered or deemed to be registered under that Act. Section 51 of the Madras Act provides inter alia that if any dispute touching the business of a registered society between a member and that society between a member and the society arises, such dispute shall be referred to the Registrar for decision. Registrar has been defined in clause (g) of section 2 of the Madras Act to mean "a person appointed to perform the duties of a Registrar of Co-operative Societies under this Act and includes a person on whom all or any of the powers of a Registrar under the Act have been conferred."It would, therefore, follow that a dispute between the appellant and the respondent in respect of its dealings relating to its Mangalore branch would normally have to be adjudicated upon by the Registrar appointed under the Madras Act. The fact that for the purpose of control, the appellant society was governed by the Bombay Act would not, in our opinion, justify a departure from the above normal rule. The word control is synonymous with superintendence, management or authority to direct, restrict or regulate (See p. 442 of Words and Phrases (Vol. 9) Permanent Edition).Control is exercised by a superior authority in exercise of its supervisory power. Adjudication of disputes is a judicial or quasi-judicial function and it would, in our opinion, be unduly straining the meaning of the word control to hold that it also covers the adjudication of disputes between a co-operative society and its members. There is a clear distinction between jurisdiction to decide a dispute which is a judicial power and the exercise of control which is an administrative power and it would be wrong to treat the two as identical or equate one with the other.7. Reference has been made on behalf of the appellant to the case of Panchshila Industrial Co-operative Society (Multi-Unit) v. The Gurgaon Central Co-operative Bank Ltd., Gurgaon, (1971) 2 SCC 500 = (AIR 1971 SC 2403 ). In that case, Deputy Registrar of Co-operative Societies, Rohtak had given an award in favour of the respondent bank which was a co-operative society governed by the provisions of Punjab Co-operative Societies Act. The appellant filed an appeal against that award before the Central Registrar. The Central Registrar dismissed the appeal on the ground that he was not the appropriate appellate authority in respect of the said award. On appeal to this Court, the decision of the Central Registrar was affirmed. It was held that the dispute between the parties fell within section 55 of the Punjab Co-operative Societies Act and those provisions were not affected by the Central Act. It would appear from the above that the question involved in that case was entirely different and the appellant can derive no assistance from it.8. Argument has also been advanced that there was no inherent lack of jurisdiction in the Deputy Registrar appointed under the Bombay Act for adjudicating upon the dispute between the parties and that it was at the best a case of lack of territorial jurisdiction. We find ourselves unable to accede to this contention because we are of the opinion that there was inherent lack of jurisdiction in the Registrar appointed under the Bombay Act for dealing with the dispute arising out of the dealings of the Mangalore branch of the appellant society with the respondent. The dispute between the parties as would appear from what has been discussed above, could only be adjudicated upon in accordance with the provisions of the Madras Act.
### Response:
0
### Explanation:
6. There is, in our opinion, no force in the above contention because we do not agree with the underlying assumption of the above argument that the word control comprehends within itself the adjudication of a claim made by a co-operative society its members. The appellant society, as would appear from the resume of facts given above, established a branch in Managalore and had dealings there with the respondent who was a resident of Kasaragod. As the objects of the appellant society were extended to the Presidency of Madras, it should, in view of sub-section (1) of section 2 of the Central Act, be deemed to have been registered under the law in force in the Presidency of Madras relating to co-operative societies. The law which was then in force, according to Mr. Naik, was the Madras Co-operative Societies Act. 1932 (hereinafter referred to as the Madras Act). Clause (f) of section 2 of that Act defines a registered society to mean a society registered or deemed to be registered under that Act. Section 51 of the Madras Act provides inter alia that if any dispute touching the business of a registered society between a member and that society between a member and the society arises, such dispute shall be referred to the Registrar for decision. Registrar has been defined in clause (g) of section 2 of the Madras Act to mean "a person appointed to perform the duties of a Registrar of Co-operative Societies under this Act and includes a person on whom all or any of the powers of a Registrar under the Act have been conferred."It would, therefore, follow that a dispute between the appellant and the respondent in respect of its dealings relating to its Mangalore branch would normally have to be adjudicated upon by the Registrar appointed under the Madras Act. The fact that for the purpose of control, the appellant society was governed by the Bombay Act would not, in our opinion, justify a departure from the above normal rule. The word control is synonymous with superintendence, management or authority to direct, restrict or regulate (See p. 442 of Words and Phrases (Vol. 9) Permanent Edition).Control is exercised by a superior authority in exercise of its supervisory power. Adjudication of disputes is a judicial or quasi-judicial function and it would, in our opinion, be unduly straining the meaning of the word control to hold that it also covers the adjudication of disputes between a co-operative society and its members. There is a clear distinction between jurisdiction to decide a dispute which is a judicial power and the exercise of control which is an administrative power and it would be wrong to treat the two as identical or equate one with the other.Argument has also been advanced that there was no inherent lack of jurisdiction in the Deputy Registrar appointed under the Bombay Act for adjudicating upon the dispute between the parties and that it was at the best a case of lack of territorial jurisdiction. We find ourselves unable to accede to this contention because we are of the opinion that there was inherent lack of jurisdiction in the Registrar appointed under the Bombay Act for dealing with the dispute arising out of the dealings of the Mangalore branch of the appellant society with the respondent. The dispute between the parties as would appear from what has been discussed above, could only be adjudicated upon in accordance with the provisions of the Madras Act.
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Rallis India Limited Vs. G. Lakshmi Kanthan
|
his attention on this plea he held that the services of the respondent were dispensed with for a reasonable cause within the meaning of S.41 of the Madras Act.4. Respondent No. 1 filed Writ Petition No. 937/1968 in Madras High Court. Kailasam, J., allowed the writ petition by his order dated 4-12-1968 and remitted back the matter to the Additional Commissioner. It would appear from his order that a grievance was made before him by the learned counsel of the respondent that the charge which was framed against him was in respect of a letter which he wrote in his capacity as a shareholder, and he, therefore, could not be punished for writing a letter as a shareholder. Argument further was that this matter had been dealt with by the management but the Assistant Commissioner had failed to deal with the aspect of the case. The learned judge stated in his order -"The plea of the petitioner is that he wrote that letter in his capacity as a shareholder. If the charge related only to the allegations made by the petitioner, after he became a shareholder, the question that will have to be decided is. Whether as an employee he is liable for the allegations which he made as a shareholder. Under what circumstances an employee will be liable for the acts committed by him in a different capacity would also fall for decision."He allowed the parties to let in evidence after remand regarding the scope of the charge and the liability of respondent as an employee.5. The company went up in appeal and a Bench of the Madras High Court dismissed it by observing in its order :"The point, therefore, was whether he could not make those allegations as a shareholder, even though he was an employee."After remand another Additional Commissioner dealt with the matter and dismissed the appeal again holding :"I am of the opinion that though he was a shareholder of the company, he was still an employee first and foremost and was amendable to the disciplinary jurisdiction of the management."6. Respondent filed Writ Petition No. 4173/1970 from the order dated the 30th June, 1970 of the Additional Commissioner. Neither in the writ petition nor before the learned single Judge was a point taken by the respondent that the order of the Additional Commissioner after remand was not in conformity with the order of remit made by the High Court. Rama Prasad Rao, J., dismissed the writ petition by his order dated 5-4-1972 holding that there was no apparent error in the order of the Additional Commissioner. The respondent filed a writ appeal. Before the Bench an argument was advanced that the scope of the remit order was limited to a finding whether the respondent as an employee could be made liable for the allegations made by him as a shareholder. Thinking the limited scope of the remit and that it was not open to him to find out whether the allegation had been made by the respondent as an employee the Bench sent back the case again to the Additional Commissioner. The Company has filed the appeal obtaining special leave of this Court.7. Learned counsel for the appellant took us through the various orders and document in this case and submitted that the scope of the earlier remit order was to find out whether the respondent had made allegations in his capacity as an employee or as a shareholder. Counsel further submitted that Kailasam, J., had allowed further evidence to be adduced only for determination of the said question, otherwise there was no necessity for any evidence, if the scope of the remit order was as thought and held by the Division Bench in the order under appeal. It seems to us that there has been a lot of conclusion in this case because of the fact that the letter dated the 4th April, 1964 was written by the respondent not in isolation but in continuation of several others letters written earlier when he was not a shareholder but simply an employee of the company. But the main charge in the case seems to be in relation to the correspondence entered into by the respondent when he was a shareholder. He purported to write the letter dated the 4th April, 1964 in his capacity as a shareholder. In such a situation we are not prepared to hold that the view of the High Court that the scope of the earlier order of remand was not to find out whether respondent had written the said letter as an employee but to ascertain whether he was liable to be discharged from service as an employee even though he had written the letter as a shareholder, is wrong. Reading the order of remand passed by kailasam, J., as upheld by the Division Bench on the earlier occasion one could get the impression as the Additional Commissioner did the scope of the remand was to find out whether the respondent had written the offending letter in his capacity as an employee. Before the domestic enquiry it had been found that the respondent had made use of papers of the company to which he could have access only as an employee and not as a shareholder. But there was no specific charge in that regard. In the state of such confusion it was not quite certain that the Additional Commissioner made a wrong order after remand. But then the High Court ultimately seems to be right in taking the view that the scope of remand was limited one. We think that the remand was for the purpose of finding out whether the respondent had committed any act in his capacity as an employee that would entail his discharge from service while writing offending letter as a shareholder of the company. Except clarifying to some extent the second order of remand made by the High Court, we do not feel persuaded to hold that the order is fit to be set aside.
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0[ds]It seems to us that there has been a lot of conclusion in this case because of the fact that the letter dated the 4th April, 1964 was written by the respondent not in isolation but in continuation of several others letters written earlier when he was not a shareholder but simply an employee of the company. But the main charge in the case seems to be in relation to the correspondence entered into by the respondent when he was a shareholder. He purported to write the letter dated the 4th April, 1964 in his capacity as a shareholder. In such a situation we are not prepared to hold that the view of the High Court that the scope of the earlier order of remand was not to find out whether respondent had written the said letter as an employee but to ascertain whether he was liable to be discharged from service as an employee even though he had written the letter as a shareholder, is wrong. Reading the order of remand passed by kailasam, J., as upheld by the Division Bench on the earlier occasion one could get the impression as the Additional Commissioner did the scope of the remand was to find out whether the respondent had written the offending letter in his capacity as an employee. Before the domestic enquiry it had been found that the respondent had made use of papers of the company to which he could have access only as an employee and not as a shareholder. But there was no specific charge in that regard. In the state of such confusion it was not quite certain that the Additional Commissioner made a wrong order after remand. But then the High Court ultimately seems to be right in taking the view that the scope of remand was limited one. We think that the remand was for the purpose of finding out whether the respondent had committed any act in his capacity as an employee that would entail his discharge from service while writing offending letter as a shareholder of the company. Except clarifying to some extent the second order of remand made by the High Court, we do not feel persuaded to hold that the order is fit to be set aside.
| 0 | 1,386 | 399 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
his attention on this plea he held that the services of the respondent were dispensed with for a reasonable cause within the meaning of S.41 of the Madras Act.4. Respondent No. 1 filed Writ Petition No. 937/1968 in Madras High Court. Kailasam, J., allowed the writ petition by his order dated 4-12-1968 and remitted back the matter to the Additional Commissioner. It would appear from his order that a grievance was made before him by the learned counsel of the respondent that the charge which was framed against him was in respect of a letter which he wrote in his capacity as a shareholder, and he, therefore, could not be punished for writing a letter as a shareholder. Argument further was that this matter had been dealt with by the management but the Assistant Commissioner had failed to deal with the aspect of the case. The learned judge stated in his order -"The plea of the petitioner is that he wrote that letter in his capacity as a shareholder. If the charge related only to the allegations made by the petitioner, after he became a shareholder, the question that will have to be decided is. Whether as an employee he is liable for the allegations which he made as a shareholder. Under what circumstances an employee will be liable for the acts committed by him in a different capacity would also fall for decision."He allowed the parties to let in evidence after remand regarding the scope of the charge and the liability of respondent as an employee.5. The company went up in appeal and a Bench of the Madras High Court dismissed it by observing in its order :"The point, therefore, was whether he could not make those allegations as a shareholder, even though he was an employee."After remand another Additional Commissioner dealt with the matter and dismissed the appeal again holding :"I am of the opinion that though he was a shareholder of the company, he was still an employee first and foremost and was amendable to the disciplinary jurisdiction of the management."6. Respondent filed Writ Petition No. 4173/1970 from the order dated the 30th June, 1970 of the Additional Commissioner. Neither in the writ petition nor before the learned single Judge was a point taken by the respondent that the order of the Additional Commissioner after remand was not in conformity with the order of remit made by the High Court. Rama Prasad Rao, J., dismissed the writ petition by his order dated 5-4-1972 holding that there was no apparent error in the order of the Additional Commissioner. The respondent filed a writ appeal. Before the Bench an argument was advanced that the scope of the remit order was limited to a finding whether the respondent as an employee could be made liable for the allegations made by him as a shareholder. Thinking the limited scope of the remit and that it was not open to him to find out whether the allegation had been made by the respondent as an employee the Bench sent back the case again to the Additional Commissioner. The Company has filed the appeal obtaining special leave of this Court.7. Learned counsel for the appellant took us through the various orders and document in this case and submitted that the scope of the earlier remit order was to find out whether the respondent had made allegations in his capacity as an employee or as a shareholder. Counsel further submitted that Kailasam, J., had allowed further evidence to be adduced only for determination of the said question, otherwise there was no necessity for any evidence, if the scope of the remit order was as thought and held by the Division Bench in the order under appeal. It seems to us that there has been a lot of conclusion in this case because of the fact that the letter dated the 4th April, 1964 was written by the respondent not in isolation but in continuation of several others letters written earlier when he was not a shareholder but simply an employee of the company. But the main charge in the case seems to be in relation to the correspondence entered into by the respondent when he was a shareholder. He purported to write the letter dated the 4th April, 1964 in his capacity as a shareholder. In such a situation we are not prepared to hold that the view of the High Court that the scope of the earlier order of remand was not to find out whether respondent had written the said letter as an employee but to ascertain whether he was liable to be discharged from service as an employee even though he had written the letter as a shareholder, is wrong. Reading the order of remand passed by kailasam, J., as upheld by the Division Bench on the earlier occasion one could get the impression as the Additional Commissioner did the scope of the remand was to find out whether the respondent had written the offending letter in his capacity as an employee. Before the domestic enquiry it had been found that the respondent had made use of papers of the company to which he could have access only as an employee and not as a shareholder. But there was no specific charge in that regard. In the state of such confusion it was not quite certain that the Additional Commissioner made a wrong order after remand. But then the High Court ultimately seems to be right in taking the view that the scope of remand was limited one. We think that the remand was for the purpose of finding out whether the respondent had committed any act in his capacity as an employee that would entail his discharge from service while writing offending letter as a shareholder of the company. Except clarifying to some extent the second order of remand made by the High Court, we do not feel persuaded to hold that the order is fit to be set aside.
### Response:
0
### Explanation:
It seems to us that there has been a lot of conclusion in this case because of the fact that the letter dated the 4th April, 1964 was written by the respondent not in isolation but in continuation of several others letters written earlier when he was not a shareholder but simply an employee of the company. But the main charge in the case seems to be in relation to the correspondence entered into by the respondent when he was a shareholder. He purported to write the letter dated the 4th April, 1964 in his capacity as a shareholder. In such a situation we are not prepared to hold that the view of the High Court that the scope of the earlier order of remand was not to find out whether respondent had written the said letter as an employee but to ascertain whether he was liable to be discharged from service as an employee even though he had written the letter as a shareholder, is wrong. Reading the order of remand passed by kailasam, J., as upheld by the Division Bench on the earlier occasion one could get the impression as the Additional Commissioner did the scope of the remand was to find out whether the respondent had written the offending letter in his capacity as an employee. Before the domestic enquiry it had been found that the respondent had made use of papers of the company to which he could have access only as an employee and not as a shareholder. But there was no specific charge in that regard. In the state of such confusion it was not quite certain that the Additional Commissioner made a wrong order after remand. But then the High Court ultimately seems to be right in taking the view that the scope of remand was limited one. We think that the remand was for the purpose of finding out whether the respondent had committed any act in his capacity as an employee that would entail his discharge from service while writing offending letter as a shareholder of the company. Except clarifying to some extent the second order of remand made by the High Court, we do not feel persuaded to hold that the order is fit to be set aside.
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Amit @ Ammu Vs. State Of Maharashtra
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for burning the school bag, bycycle etc. Out of the deposition of the witnesses, the prosecution case was primarily based on the testimony of PW1 and PW11 and on the circumstance of last seen as deposed by these two witnesses.7. As already noticed body of deceased was recovered on 29th March, 2001. It stands established that the same was recovered from a dilapidated building in the remote area of the forest as deposed to by PW1 and PW11. As per the post-mortem report the case of death is strangulation. It also shows the commission of the sexual assault on the deceased prior to her death. It may be noted that the defence admitted the post-mortem report. An argument was sought to be urged that the post-mortem report could not be relied upon in view of contradictions therein. The contradiction pointed out by learned counsel is that on one hand, the report states that the body had early signs of decomposition and on the other, all the injuries have been stated to be fresh. There was no requirement to note whether the injuries were fresh or not. Further, the post-mortem report having been admitted it is not open to the appellant to criticize the recitals therein about giving an opportunity to the doctor to explain it. 8. The main submission of learned counsel for the appellant is that unless time of death is established it is not permissible to rely upon circumstance of last seen so as to convict the appellant. The main circumstance against the appellant is of last seen with the deceased as deposed by PW1 and PW11. We have carefully examined the testimony of PW1 and PW11. Their evidence is trustworthy and reliable. It has ring of truth. It stands fully established that they had seen the deceased and the appellant on 28th March as noticed hereinbefore. Apparently, both left as deposed by PW1 but as the circumstances show that, in fact, they did not leave. When the next day PW1 again came to the same area for grazing of buffaloes, he found the body of the deceased whereupon the matter was reported to the police and FIR recorded and investigation conducted as noticed earlier. It has also come in evidence that usually PW1 used to go to the same area for grazing of the animals which was a secluded area and also had a dilapidated building. It is apparent from the site plan as well. Regarding the contention that the time of the incident had not been established and therefore the circumstance of last seen is not sufficient to convict the appellant, the High Court on examination of the evidence has reached the following conclusion:- "In the instant case, the region being temperate, rigor mortis lasts for about two to three days. If we apply this analogy, then at the time of post-mortem examination, which has conducted on 30.3.2001 and begun at 11.40 a.m., the doctor did not find rigor mortis. That means the time of death must have been on 28.3.2001 between 3.00 p.m. and 4.00 p.m., since the rigor mortis in a temperate region lasts for two days. This is not the case, therefore, where time of death cannot be ascertained on the basis of these recognised guidelines, merely because the same is not given in the post-mortem report. In our considered view, this is not the circumstance which affects the material particulars of the prosecution case in the crime in question." We are in complete agreement with the conclusion of the High Court on the aspect of time of the death. 9. Learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman and Another vs. State of Assam (2002) 6 SCC 715 , for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of such case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and deceased were last seen by PW1 and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court.10. The next question is of the sentence. Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case.
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1[ds]The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and deceased were last seen by PW1 and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court.Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case.
| 1 | 1,856 | 261 |
### 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:
for burning the school bag, bycycle etc. Out of the deposition of the witnesses, the prosecution case was primarily based on the testimony of PW1 and PW11 and on the circumstance of last seen as deposed by these two witnesses.7. As already noticed body of deceased was recovered on 29th March, 2001. It stands established that the same was recovered from a dilapidated building in the remote area of the forest as deposed to by PW1 and PW11. As per the post-mortem report the case of death is strangulation. It also shows the commission of the sexual assault on the deceased prior to her death. It may be noted that the defence admitted the post-mortem report. An argument was sought to be urged that the post-mortem report could not be relied upon in view of contradictions therein. The contradiction pointed out by learned counsel is that on one hand, the report states that the body had early signs of decomposition and on the other, all the injuries have been stated to be fresh. There was no requirement to note whether the injuries were fresh or not. Further, the post-mortem report having been admitted it is not open to the appellant to criticize the recitals therein about giving an opportunity to the doctor to explain it. 8. The main submission of learned counsel for the appellant is that unless time of death is established it is not permissible to rely upon circumstance of last seen so as to convict the appellant. The main circumstance against the appellant is of last seen with the deceased as deposed by PW1 and PW11. We have carefully examined the testimony of PW1 and PW11. Their evidence is trustworthy and reliable. It has ring of truth. It stands fully established that they had seen the deceased and the appellant on 28th March as noticed hereinbefore. Apparently, both left as deposed by PW1 but as the circumstances show that, in fact, they did not leave. When the next day PW1 again came to the same area for grazing of buffaloes, he found the body of the deceased whereupon the matter was reported to the police and FIR recorded and investigation conducted as noticed earlier. It has also come in evidence that usually PW1 used to go to the same area for grazing of the animals which was a secluded area and also had a dilapidated building. It is apparent from the site plan as well. Regarding the contention that the time of the incident had not been established and therefore the circumstance of last seen is not sufficient to convict the appellant, the High Court on examination of the evidence has reached the following conclusion:- "In the instant case, the region being temperate, rigor mortis lasts for about two to three days. If we apply this analogy, then at the time of post-mortem examination, which has conducted on 30.3.2001 and begun at 11.40 a.m., the doctor did not find rigor mortis. That means the time of death must have been on 28.3.2001 between 3.00 p.m. and 4.00 p.m., since the rigor mortis in a temperate region lasts for two days. This is not the case, therefore, where time of death cannot be ascertained on the basis of these recognised guidelines, merely because the same is not given in the post-mortem report. In our considered view, this is not the circumstance which affects the material particulars of the prosecution case in the crime in question." We are in complete agreement with the conclusion of the High Court on the aspect of time of the death. 9. Learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman and Another vs. State of Assam (2002) 6 SCC 715 , for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of such case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and deceased were last seen by PW1 and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court.10. The next question is of the sentence. Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case.
### Response:
1
### Explanation:
The present is a case to which observation as aforesaid and principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed. In which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and deceased were last seen by PW1 and PW11. No explanation has been offered in statement by the appellant recorded under Section 313, Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by Court of Sessions and affirmed by the High Court.Considering that the appellant is a young man, at the time of incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case.
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TANUKU TALUK VILLAGE OFFICERS ASSOCIATION Vs. TANUKU MUNICIPALITY
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5. The appellant filed two civil suits against the respondents in relation to the suit land. One was for grant of permanent injunction (OS No.384 of 1986) and the other was for recovery of arrears of rent (OS No.226 of 1987). Both the civil suits were filed in the Court of 1 st Additional District Munsif, Tanuku. 6. By Judgment/decree dated 14.08.1996, the Additional District Munsif decreed both the civil suits. 7. The plaintiff also filed a suit bearing RCC No.5/1987 before the Rent Controller(Principal District Munsif), Tanuku for eviction of defendant No.1(respondent No.1 herein). By order dated 20.01.1997, the Rent Controller passed a decree and order in favour of the plaintiff and directed defendant No.1 to handover the suit land to the plaintiff. 8. Thereafter, the plaintiff filed an application bearing I.A. No.268 of 1997 in R.C.C. No.5 of 1987 before the Rent Controller(Principal District Munsif), Tanuku for releasing of cheque of Rs.42,400/¬ deposited by respondent No.1 towards the rent and arrears of the suit land. By order dated 14.05.1997, the Rent Controller dismissed the application filed by the plaintiff. 9. The plaintiff felt aggrieved by the said order and filed C.M.A. No.13 of 1997 before the Court of Senior Civil Judge at Tanuku. Being aggrieved by the order dated 20.01.1997 of the Rent Controller(Principal District Munsif), defendant No.1 filed C.M.A. No.8 of 1997 before the Court of Senior Civil Judge at Tanuku. 10. The Senior Civil Judge, Tanuku took up both the matters together. Vide order dated 21.01.2004, the Senior Civil Judge allowed the application filed by defendant No.1 and set aside the order dated 20.01.1997 passed by the Rent Controller(Principal District Munsif) and dismissed the application filed by the plaintiff by confirming the order dated 14.05.1997. 11. Being aggrieved by the order dated 14.08.1996 of the Additional District Munsif, defendant No.1 filed appeals being A.S. Nos.69 & 70/1996 before the Senior Civil Judge, Tanuku. Vide order dated 21.01.2004, the Senior Civil Judge allowed the appeals and set aside the order dated 14.08.1996 passed by the Additional District Munsif. 12. The appellant (plaintiff) felt aggrieved by both the orders of the First Appellate Court dated 21.01.2014 and filed two Second Appeals being S.A. Nos.396 & 414 of 2004 and C.R.P.Nos.2069 and 2073 of 2004 in the High Court of Andhra Pradesh. 13. The High Court admitted the Second Appeals on the following three substantial questions of law. a) Whether the lower appellate court is right in holding that plaintiff society became defunct without there being any evidence to that effect ? b) Whether the immovable property purchased by a registered society under registered sale deeds shall automatically vests with its admitted tenant without there being any deed of conveyance ? c) Whether a tenant while admitting that it was only a tenant inducted into possession for a rent can claim ownership over the very same property contrary to the provisions of Section 116 of the Indian Evidence Act ? 14. By impugned order, the High Court dismissed the appeals as well as revision petitions, which has given rise to filing of these appeals by way of special leave in this Court by the plaintiff. 15. So, the short question, which arises for consideration in these appeals is whether the High Court was justified in dismissing the plaintiffs Second Appeals. 16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order, remand the case to the High Court for the disposal of the second appeals and revision petitions afresh on merits as indicated below. 17. The need to remand the case to the High Court has arisen because we find, on perusal of the impugned order, that the High Court though admitted the second appeals on the aforementioned three substantial questions of law but instead of answering these questions, dismissed the appeals by answering the question, which was not framed. 18. In our view, the High Court failed to see that the second appeal could be decided only on the question(s) framed under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). However, if at the time of hearing, the High Court considers that the second appeal involves any other substantial question(s) of law, it has the jurisdiction to frame such question(s) but only by assigning the reasons. At the same time, the respondent is also entitled to argue at the time of hearing that the question(s) though framed are not the substantial question(s) of law involved in appeal (See Section 100 (5) of the Code and its proviso). 19. A fortiori, the disposal of the second appeal by the High Court by answering the question(s) which was/were not framed either at the time of admission of the second appeal or framed without ensuring compliance of the mandatory procedure prescribed in proviso to Section 100 (5) of the Code is not legally sustainable. 20. As mentioned above, though the High Court framed three substantial questions but did not answer any of them on their respective merit either way. Instead the High Court dismissed the second appeals on the question, which it had not framed. The question on which the High Court dismissed the appeals was in relation to the maintainability of the suit and this question was not a part of the three questions framed and nor the High Court framed such question by taking recourse to powers under Section 100(5) proviso of the Code. 21. Learned counsel for the respondents made sincere attempt in her submission that the findings recorded by the High Court on its merit is just and proper and hence should not be disturbed. We cannot accept her submission in the light of what is held above. The respondents, therefore, will be at liberty to raise such pleas before the High Court in accordance with law consequent upon the matter now being remanded to the High Court.
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1[ds]16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order, remand the case to the High Court for the disposal of the second appeals and revision petitions afresh on merits as indicated below17. The need to remand the case to the High Court has arisen because we find, on perusal of the impugned order, that the High Court though admitted the second appeals on the aforementioned three substantial questions of law but instead of answering these questions, dismissed the appeals by answering the question, which was not framed18. In our view, the High Court failed to see that the second appeal could be decided only on the question(s) framed under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). However, if at the time of hearing, the High Court considers that the second appeal involves any other substantial question(s) of law, it has the jurisdiction to frame such question(s) but only by assigning the reasons. At the same time, the respondent is also entitled to argue at the time of hearing that the question(s) though framed are not the substantial question(s) of law involved in appeal (See Section 100 (5) of the Code and its proviso).19. A fortiori, the disposal of the second appeal by the High Court by answering the question(s) which was/were not framed either at the time of admission of the second appeal or framed without ensuring compliance of the mandatory procedure prescribed in proviso to Section 100 (5) of the Code is not legally sustainable20. As mentioned above, though the High Court framed three substantial questions but did not answer any of them on their respective merit either way. Instead the High Court dismissed the second appeals on the question, which it had not framed. The question on which the High Court dismissed the appeals was in relation to the maintainability of the suit and this question was not a part of the three questions framed and nor the High Court framed such question by taking recourse to powers under Section 100(5) proviso of the Code.21. Learned counsel for the respondents made sincere attempt in her submission that the findings recorded by the High Court on its merit is just and proper and hence should not be disturbed. We cannot accept her submission in the light of what is held above. The respondents, therefore, will be at liberty to raise such pleas before the High Court in accordance with law consequent upon the matter now being remanded to the High Court.
| 1 | 1,279 | 511 |
### 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:
5. The appellant filed two civil suits against the respondents in relation to the suit land. One was for grant of permanent injunction (OS No.384 of 1986) and the other was for recovery of arrears of rent (OS No.226 of 1987). Both the civil suits were filed in the Court of 1 st Additional District Munsif, Tanuku. 6. By Judgment/decree dated 14.08.1996, the Additional District Munsif decreed both the civil suits. 7. The plaintiff also filed a suit bearing RCC No.5/1987 before the Rent Controller(Principal District Munsif), Tanuku for eviction of defendant No.1(respondent No.1 herein). By order dated 20.01.1997, the Rent Controller passed a decree and order in favour of the plaintiff and directed defendant No.1 to handover the suit land to the plaintiff. 8. Thereafter, the plaintiff filed an application bearing I.A. No.268 of 1997 in R.C.C. No.5 of 1987 before the Rent Controller(Principal District Munsif), Tanuku for releasing of cheque of Rs.42,400/¬ deposited by respondent No.1 towards the rent and arrears of the suit land. By order dated 14.05.1997, the Rent Controller dismissed the application filed by the plaintiff. 9. The plaintiff felt aggrieved by the said order and filed C.M.A. No.13 of 1997 before the Court of Senior Civil Judge at Tanuku. Being aggrieved by the order dated 20.01.1997 of the Rent Controller(Principal District Munsif), defendant No.1 filed C.M.A. No.8 of 1997 before the Court of Senior Civil Judge at Tanuku. 10. The Senior Civil Judge, Tanuku took up both the matters together. Vide order dated 21.01.2004, the Senior Civil Judge allowed the application filed by defendant No.1 and set aside the order dated 20.01.1997 passed by the Rent Controller(Principal District Munsif) and dismissed the application filed by the plaintiff by confirming the order dated 14.05.1997. 11. Being aggrieved by the order dated 14.08.1996 of the Additional District Munsif, defendant No.1 filed appeals being A.S. Nos.69 & 70/1996 before the Senior Civil Judge, Tanuku. Vide order dated 21.01.2004, the Senior Civil Judge allowed the appeals and set aside the order dated 14.08.1996 passed by the Additional District Munsif. 12. The appellant (plaintiff) felt aggrieved by both the orders of the First Appellate Court dated 21.01.2014 and filed two Second Appeals being S.A. Nos.396 & 414 of 2004 and C.R.P.Nos.2069 and 2073 of 2004 in the High Court of Andhra Pradesh. 13. The High Court admitted the Second Appeals on the following three substantial questions of law. a) Whether the lower appellate court is right in holding that plaintiff society became defunct without there being any evidence to that effect ? b) Whether the immovable property purchased by a registered society under registered sale deeds shall automatically vests with its admitted tenant without there being any deed of conveyance ? c) Whether a tenant while admitting that it was only a tenant inducted into possession for a rent can claim ownership over the very same property contrary to the provisions of Section 116 of the Indian Evidence Act ? 14. By impugned order, the High Court dismissed the appeals as well as revision petitions, which has given rise to filing of these appeals by way of special leave in this Court by the plaintiff. 15. So, the short question, which arises for consideration in these appeals is whether the High Court was justified in dismissing the plaintiffs Second Appeals. 16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order, remand the case to the High Court for the disposal of the second appeals and revision petitions afresh on merits as indicated below. 17. The need to remand the case to the High Court has arisen because we find, on perusal of the impugned order, that the High Court though admitted the second appeals on the aforementioned three substantial questions of law but instead of answering these questions, dismissed the appeals by answering the question, which was not framed. 18. In our view, the High Court failed to see that the second appeal could be decided only on the question(s) framed under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). However, if at the time of hearing, the High Court considers that the second appeal involves any other substantial question(s) of law, it has the jurisdiction to frame such question(s) but only by assigning the reasons. At the same time, the respondent is also entitled to argue at the time of hearing that the question(s) though framed are not the substantial question(s) of law involved in appeal (See Section 100 (5) of the Code and its proviso). 19. A fortiori, the disposal of the second appeal by the High Court by answering the question(s) which was/were not framed either at the time of admission of the second appeal or framed without ensuring compliance of the mandatory procedure prescribed in proviso to Section 100 (5) of the Code is not legally sustainable. 20. As mentioned above, though the High Court framed three substantial questions but did not answer any of them on their respective merit either way. Instead the High Court dismissed the second appeals on the question, which it had not framed. The question on which the High Court dismissed the appeals was in relation to the maintainability of the suit and this question was not a part of the three questions framed and nor the High Court framed such question by taking recourse to powers under Section 100(5) proviso of the Code. 21. Learned counsel for the respondents made sincere attempt in her submission that the findings recorded by the High Court on its merit is just and proper and hence should not be disturbed. We cannot accept her submission in the light of what is held above. The respondents, therefore, will be at liberty to raise such pleas before the High Court in accordance with law consequent upon the matter now being remanded to the High Court.
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16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order, remand the case to the High Court for the disposal of the second appeals and revision petitions afresh on merits as indicated below17. The need to remand the case to the High Court has arisen because we find, on perusal of the impugned order, that the High Court though admitted the second appeals on the aforementioned three substantial questions of law but instead of answering these questions, dismissed the appeals by answering the question, which was not framed18. In our view, the High Court failed to see that the second appeal could be decided only on the question(s) framed under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). However, if at the time of hearing, the High Court considers that the second appeal involves any other substantial question(s) of law, it has the jurisdiction to frame such question(s) but only by assigning the reasons. At the same time, the respondent is also entitled to argue at the time of hearing that the question(s) though framed are not the substantial question(s) of law involved in appeal (See Section 100 (5) of the Code and its proviso).19. A fortiori, the disposal of the second appeal by the High Court by answering the question(s) which was/were not framed either at the time of admission of the second appeal or framed without ensuring compliance of the mandatory procedure prescribed in proviso to Section 100 (5) of the Code is not legally sustainable20. As mentioned above, though the High Court framed three substantial questions but did not answer any of them on their respective merit either way. Instead the High Court dismissed the second appeals on the question, which it had not framed. The question on which the High Court dismissed the appeals was in relation to the maintainability of the suit and this question was not a part of the three questions framed and nor the High Court framed such question by taking recourse to powers under Section 100(5) proviso of the Code.21. Learned counsel for the respondents made sincere attempt in her submission that the findings recorded by the High Court on its merit is just and proper and hence should not be disturbed. We cannot accept her submission in the light of what is held above. The respondents, therefore, will be at liberty to raise such pleas before the High Court in accordance with law consequent upon the matter now being remanded to the High Court.
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A.Shanmugam Vs. Ariya K.R.K.M.N.P.Sangam Tr.Pres.Etc
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fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 218. This Court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under: “While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.” 37. False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite sometime, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light. 38. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants. 39. Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case. IRRELEVANT DOCUMENTS: 40. All documents filed by the appellant along with the plaint have no relevance to the controversy involved in the case. We have reproduced a list of the documents to demonstrate that these documents have been filed to mislead the Court. The First Appellate Court has, in fact, got into the trap and was misled by the documents and reached to an entirely erroneous finding that resulted in undue delay of disposal of a small case for almost 17 years. FALSE AND IRRELEVANT PLEAS: 41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs. 42. On the facts of the present case, following principles emerge: 1. It is the bounden duty of the Court to uphold the truth and do justice. 2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. 6. Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 7. The watchman, caretaker or agent holds the property of the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession. 8. The protection of the Court can be granted or extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour. 43.
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0[ds]19. In our considered view, a well-reasoned judgment and a decree passed by the trial court ought not to have been reversed by the First Appellate Court. It is reiterated that thefather was engaged as a Watchman on a monthly salary and in that capacity he was allowed to stay in the suit premises and after his death his son (the appellant herein) continued to serve the respondent-Society as a Watchman and was allowed to live in the premises. The property is admittedly owned by the respondent-Society.Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case.In the instant case, we would have ordinarily imposed heavy costs and would have ordered restitution but looking to the fact that the appellant is a Watchman and may not be able to bear the financial burden, we dismiss these appeals with very nominal costs of Rs. 25,000/- to be paid within a period of two months and direct the appellant to vacate the premises within two months from today and handover peaceful possession of the suit property to the respondent-Society. In case, the appellant does not vacate the premises within two months from today, the respondent-Society would be a liberty to take police help and get the premises vacated.
| 0 | 11,267 | 267 |
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fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 218. This Court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under: “While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.” 37. False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite sometime, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light. 38. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants. 39. Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case. IRRELEVANT DOCUMENTS: 40. All documents filed by the appellant along with the plaint have no relevance to the controversy involved in the case. We have reproduced a list of the documents to demonstrate that these documents have been filed to mislead the Court. The First Appellate Court has, in fact, got into the trap and was misled by the documents and reached to an entirely erroneous finding that resulted in undue delay of disposal of a small case for almost 17 years. FALSE AND IRRELEVANT PLEAS: 41. The appellant is also guilty of introducing untenable pleas. The plea of adverse possession which has no foundation or basis in the facts and circumstances of the case was introduced to gain undue benefit. The Court must be cautious in granting relief to a party guilty of deliberately introducing irrelevant and untenable pleas responsible for creating unnecessary confusion by introducing such documents and pleas. These factors must be taken into consideration while granting relief and/or imposing the costs. 42. On the facts of the present case, following principles emerge: 1. It is the bounden duty of the Court to uphold the truth and do justice. 2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. 6. Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 7. The watchman, caretaker or agent holds the property of the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession. 8. The protection of the Court can be granted or extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour. 43.
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### Explanation:
19. In our considered view, a well-reasoned judgment and a decree passed by the trial court ought not to have been reversed by the First Appellate Court. It is reiterated that thefather was engaged as a Watchman on a monthly salary and in that capacity he was allowed to stay in the suit premises and after his death his son (the appellant herein) continued to serve the respondent-Society as a Watchman and was allowed to live in the premises. The property is admittedly owned by the respondent-Society.Now, when we revert to the facts of this case it becomes quite evident that the appellant is guilty of suppressing material facts and introducing false pleas and irrelevant documents. The appellant has also clouded the entire case with pleas which have nothing to do with the main controversy involved in the case.In the instant case, we would have ordinarily imposed heavy costs and would have ordered restitution but looking to the fact that the appellant is a Watchman and may not be able to bear the financial burden, we dismiss these appeals with very nominal costs of Rs. 25,000/- to be paid within a period of two months and direct the appellant to vacate the premises within two months from today and handover peaceful possession of the suit property to the respondent-Society. In case, the appellant does not vacate the premises within two months from today, the respondent-Society would be a liberty to take police help and get the premises vacated.
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Nagar Nigam,Meerut Vs. Al Faheem Meat Exports Pvt.Ltd
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in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favoritism or nepotism. Ordinarily, these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. observed, that though that is the ordinary rule, it is not an invariable rule. There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience. 18. The law is, thus, clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the bid, and there is total transparency. In our opinion this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence. 19. In the present case, unfortunately, the High Courts attention was not drawn to the aforementioned legal principles. 20. Furthermore, we see force in the submission of Mr. Jayant Bhushan, learned senior counsel for the appellant, that it was not for the High Court to fix the terms and conditions of the Contract. It is for the state authorities to take a policy decision and fix the terms and conditions of the Contract. It is one thing to say that the High Court in exercise of power of judicial review may strike down the contract or a notice inviting the tender if it offends Article 14 of the Constitution of India, but it is another thing to say that the High Court in exercise of the power of judicial review would thrust a contract upon a non-willing party particularly when the said exercise would be violative of Article 14 of the Constitution. Yet again, save and except in some very rare and exceptional case, the question of fixing any terms of the Contract or laying down the terms and conditions is for the concerned authority to decide, and it is not a matter within the domain of the Courts. In this behalf, we may refer to a decision of this Court in Association of Registration Plates vs. Union of India & Ors. reported in (2005) 1 SCC 679 , wherein this Court opined: The fifteen years contract period has also been supported by the Union of India and State authorities. We find great substance in the submissions made on the data supplied as a justification for awarding the contract for a long period of 15 years. There would be a huge investment required towards the infrastructure by the selected manufacturer and the major return would be expected in initial period of two years although he would be bound down to render his services for future vehicles periodically for along period. Looking to the huge investment required and the nature of the job which is most sophisticated, requiring network and infrastructure, a long-term contract, if though viable and feasible, cannot be faulted by the court. If there are two alternatives available of giving a short-term or a long-term contract, it is not for the court to suggest that the short-term contract should be given. On the subject of business management, expertise is available with the State authorities. The policy has been chalked out and the tender conditions have been formulated after joint deliberations between authorities of the State and the intending manufacturers. A contract providing for technical expertise, financial capability and experience qualifications with a long term of 15 years would serve the dual purpose of attracting sound parties to stake their money in understanding the job of supply and safeguard the public interest by ensuring that for a long period the work of affixation of security plates would continue uninterrupted in fulfillment of the object of the scheme contained in Rule 50. Our considered opinion, therefore, is that none of the impugned clauses in the tender conditions can be held to be arbitrary or discriminatory deserving their striking down as prayed for on behalf of the petitioners. (emphasis supplied) 21. In the present case, the respondent no.1 challenged the impugned advertisement dated 6.12.2004 issued by the Nagar Nigam. We have carefully perused the said advertisement and find no illegality in the same. It has been held by this Court in several decisions that the Court should not ordinarily interfere with the terms mentioned in such an advertisement. Thus in Global Energy Ltd. and Anr. vs. Adani Exports Ltd. and Ors. 2005(4) SCC 435 this Court observed (vide para 10): The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. 22. Similarly in Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. and Anr. 2005 (6) SCC 138 , this Court held that the modern trend points to judicial restraint in reviewing the administrative action. The court does not sit as a court of appeal over such a decision but merely reviews the manner in which the decision was made. The court ordinarily would not interfere with an administrative decision. The Government must have freedom of contract. Some fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere.
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1[ds]11. Indisputably Appellant-Corporation is a State within the meaning of Article 12 of the Constitution of India. It was constituted under the said Act which was enacted with a view to ensure better municipal governmence of the cities in the State of Uttar Pradesh. The statutory obligation on the part of the Municipal Corporation to build and/or maintain a hygienic slaughter house is not open to question. We have noticed hereinbefore that in terms of Sections 422 and 423 of the Act, the Corporation has various options. Such options, however, must be exercised by the Nagar Nigam itself having regard to the statutory scheme with a view to maintain public hygiene, but the same must be done in the light of the doctrine of life and liberty of a citizen as adumbrated under Article 21 of the Constitution. Such options cannot be exercised by the High Court, as that is no part of its functions. Maintenance and setting up of a slaughter house (abattoir) is a statutory responsibility of the Corporation. We may notice that the three Judge bench of this Court in Buffalo Traders Welfare Association vs. Union of India & Ors. (2004) 11 SCC 333 had issued certain directions to the Municipal Corporation of Delhi to construct both temporary and permanent slaughter house (abattoir) keeping in mind the future need of the city. This Court in the said case has been monitoring construction of a modern slaughter house in Delhi. However, the question who should be given the contract for the slaughter house and on what terms, is for the Municipal Corporation to decide, and not for the Courts. All that the Courts can do is to ensure that there is no arbitrariness on the part of the Municipal authorities13. This Court time and again has emphasized the need to maintain transparency in grant of public contracts. Ordinarily, maintenance of transparency as also compliance of Article 14 of the Constitution would inter alia be ensured by holding public auction upon issuance of advertisement in the well known newspapers. That has not been done in this case. Although the Nagar Nigam had advertised the contract, the High Court has directed that it should be given for 10 years to a particular party (respondent No. 1). This was clearly illegal14. It is well settled that ordinarily the State or its instrumentalities should not give contracts by private negotiation but by open public auction/tender after wide publicity. In this case the contract has not only been given by way of private negotiation, but the negotiation has been carried out by the High Court itself, which is impermissible15. We have no doubt that in rare and exceptional cases, having regard to the nature of the trade or largesse or for some other good reason, a contract may have to be granted by private negotiation, but normally that should not be done as it shakes the public confidence16. The law is well-settled that contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public auction/public tender by inviting tenders from eligible persons and the notification of the public-auction or inviting tenders should be advertised in well known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject-matter of auction, technical specifications, estimated cost, earnest money Deposit, etc. The award of Government contracts through public-auction/public tender is to ensure transparency in the public procurement, to maximise economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned. This is required by Article 14 of the Constitution. However, in rare and exceptional cases, for instance during natural calamities and emergencies declared by the Government; where the procurement is possible from a single source only; where the supplier or contractor has exclusive rights in respect of the goods or services and no reasonable alternative or substitute exists; where the auction was held on several dates but there were no bidders or the bids offered were too low, etc., this normal rule may be departed from and such contracts may be awarded through private negotiations18. The law is, thus, clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the bid, and there is total transparency. In our opinion this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence19. In the present case, unfortunately, the High Courts attention was not drawn to the aforementioned legal principles20. Furthermore, we see force in the submission of Mr. Jayant Bhushan, learned senior counsel for the appellant, that it was not for the High Court to fix the terms and conditions of the Contract. It is for the state authorities to take a policy decision and fix the terms and conditions of the Contract. It is one thing to say that the High Court in exercise of power of judicial review may strike down the contract or a notice inviting the tender if it offends Article 14 of the Constitution of India, but it is another thing to say that the High Court in exercise of the power of judicial review would thrust a contract upon a non-willing party particularly when the said exercise would be violative of Article 14 of the Constitution. Yet again, save and except in some very rare and exceptional case, the question of fixing any terms of the Contract or laying down the terms and conditions is for the concerned authority to decide, and it is not a matter within the domain of the CourtsIn our opinion, such a policy decision may be required to be taken keeping in view the health and welfare of a large number of inhabitants of the vicinity where such abattoirs are functioning, as also vis-à-vis the health of the inhabitants of the locality, which is a fundamental right under Article 21 of the Constitution of India. If a policy decision is taken by the State, it goes without saying that the appellant-Corporation in future may act in terms thereof, unless otherwise provided for by the Statute27. Although the matter is not before us, however, keeping in view the fact that now it is widely felt that a modern abattoir should be constructed, as was noticed by this Court in Buffalo Traders Welfare Association (supra), which ensures hygiene and sanitation, we would request the High Court to consider the desirability of disposing of Civil Misc. Writ Petition No. 11069/2006 (Asaf Ali vs. State of U.P. & Ors.) as expeditiously as possible. Save and except the aforementioned directions, we are of the opinion that the Corporation may work out the other modalities as it deems fit and in accordance with law. If respondent No.1 has deposited any amount for the modernization of the plant, which has not been carried out, the Corporation may refund the amount subject to any outstanding dues.
| 1 | 6,307 | 1,337 |
### Instruction:
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in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favoritism or nepotism. Ordinarily, these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. observed, that though that is the ordinary rule, it is not an invariable rule. There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience. 18. The law is, thus, clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the bid, and there is total transparency. In our opinion this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence. 19. In the present case, unfortunately, the High Courts attention was not drawn to the aforementioned legal principles. 20. Furthermore, we see force in the submission of Mr. Jayant Bhushan, learned senior counsel for the appellant, that it was not for the High Court to fix the terms and conditions of the Contract. It is for the state authorities to take a policy decision and fix the terms and conditions of the Contract. It is one thing to say that the High Court in exercise of power of judicial review may strike down the contract or a notice inviting the tender if it offends Article 14 of the Constitution of India, but it is another thing to say that the High Court in exercise of the power of judicial review would thrust a contract upon a non-willing party particularly when the said exercise would be violative of Article 14 of the Constitution. Yet again, save and except in some very rare and exceptional case, the question of fixing any terms of the Contract or laying down the terms and conditions is for the concerned authority to decide, and it is not a matter within the domain of the Courts. In this behalf, we may refer to a decision of this Court in Association of Registration Plates vs. Union of India & Ors. reported in (2005) 1 SCC 679 , wherein this Court opined: The fifteen years contract period has also been supported by the Union of India and State authorities. We find great substance in the submissions made on the data supplied as a justification for awarding the contract for a long period of 15 years. There would be a huge investment required towards the infrastructure by the selected manufacturer and the major return would be expected in initial period of two years although he would be bound down to render his services for future vehicles periodically for along period. Looking to the huge investment required and the nature of the job which is most sophisticated, requiring network and infrastructure, a long-term contract, if though viable and feasible, cannot be faulted by the court. If there are two alternatives available of giving a short-term or a long-term contract, it is not for the court to suggest that the short-term contract should be given. On the subject of business management, expertise is available with the State authorities. The policy has been chalked out and the tender conditions have been formulated after joint deliberations between authorities of the State and the intending manufacturers. A contract providing for technical expertise, financial capability and experience qualifications with a long term of 15 years would serve the dual purpose of attracting sound parties to stake their money in understanding the job of supply and safeguard the public interest by ensuring that for a long period the work of affixation of security plates would continue uninterrupted in fulfillment of the object of the scheme contained in Rule 50. Our considered opinion, therefore, is that none of the impugned clauses in the tender conditions can be held to be arbitrary or discriminatory deserving their striking down as prayed for on behalf of the petitioners. (emphasis supplied) 21. In the present case, the respondent no.1 challenged the impugned advertisement dated 6.12.2004 issued by the Nagar Nigam. We have carefully perused the said advertisement and find no illegality in the same. It has been held by this Court in several decisions that the Court should not ordinarily interfere with the terms mentioned in such an advertisement. Thus in Global Energy Ltd. and Anr. vs. Adani Exports Ltd. and Ors. 2005(4) SCC 435 this Court observed (vide para 10): The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. 22. Similarly in Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. and Anr. 2005 (6) SCC 138 , this Court held that the modern trend points to judicial restraint in reviewing the administrative action. The court does not sit as a court of appeal over such a decision but merely reviews the manner in which the decision was made. The court ordinarily would not interfere with an administrative decision. The Government must have freedom of contract. Some fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere.
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house (abattoir) keeping in mind the future need of the city. This Court in the said case has been monitoring construction of a modern slaughter house in Delhi. However, the question who should be given the contract for the slaughter house and on what terms, is for the Municipal Corporation to decide, and not for the Courts. All that the Courts can do is to ensure that there is no arbitrariness on the part of the Municipal authorities13. This Court time and again has emphasized the need to maintain transparency in grant of public contracts. Ordinarily, maintenance of transparency as also compliance of Article 14 of the Constitution would inter alia be ensured by holding public auction upon issuance of advertisement in the well known newspapers. That has not been done in this case. Although the Nagar Nigam had advertised the contract, the High Court has directed that it should be given for 10 years to a particular party (respondent No. 1). This was clearly illegal14. It is well settled that ordinarily the State or its instrumentalities should not give contracts by private negotiation but by open public auction/tender after wide publicity. In this case the contract has not only been given by way of private negotiation, but the negotiation has been carried out by the High Court itself, which is impermissible15. We have no doubt that in rare and exceptional cases, having regard to the nature of the trade or largesse or for some other good reason, a contract may have to be granted by private negotiation, but normally that should not be done as it shakes the public confidence16. The law is well-settled that contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public auction/public tender by inviting tenders from eligible persons and the notification of the public-auction or inviting tenders should be advertised in well known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject-matter of auction, technical specifications, estimated cost, earnest money Deposit, etc. The award of Government contracts through public-auction/public tender is to ensure transparency in the public procurement, to maximise economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned. This is required by Article 14 of the Constitution. However, in rare and exceptional cases, for instance during natural calamities and emergencies declared by the Government; where the procurement is possible from a single source only; where the supplier or contractor has exclusive rights in respect of the goods or services and no reasonable alternative or substitute exists; where the auction was held on several dates but there were no bidders or the bids offered were too low, etc., this normal rule may be departed from and such contracts may be awarded through private negotiations18. The law is, thus, clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the bid, and there is total transparency. In our opinion this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence19. In the present case, unfortunately, the High Courts attention was not drawn to the aforementioned legal principles20. Furthermore, we see force in the submission of Mr. Jayant Bhushan, learned senior counsel for the appellant, that it was not for the High Court to fix the terms and conditions of the Contract. It is for the state authorities to take a policy decision and fix the terms and conditions of the Contract. It is one thing to say that the High Court in exercise of power of judicial review may strike down the contract or a notice inviting the tender if it offends Article 14 of the Constitution of India, but it is another thing to say that the High Court in exercise of the power of judicial review would thrust a contract upon a non-willing party particularly when the said exercise would be violative of Article 14 of the Constitution. Yet again, save and except in some very rare and exceptional case, the question of fixing any terms of the Contract or laying down the terms and conditions is for the concerned authority to decide, and it is not a matter within the domain of the CourtsIn our opinion, such a policy decision may be required to be taken keeping in view the health and welfare of a large number of inhabitants of the vicinity where such abattoirs are functioning, as also vis-à-vis the health of the inhabitants of the locality, which is a fundamental right under Article 21 of the Constitution of India. If a policy decision is taken by the State, it goes without saying that the appellant-Corporation in future may act in terms thereof, unless otherwise provided for by the Statute27. Although the matter is not before us, however, keeping in view the fact that now it is widely felt that a modern abattoir should be constructed, as was noticed by this Court in Buffalo Traders Welfare Association (supra), which ensures hygiene and sanitation, we would request the High Court to consider the desirability of disposing of Civil Misc. Writ Petition No. 11069/2006 (Asaf Ali vs. State of U.P. & Ors.) as expeditiously as possible. Save and except the aforementioned directions, we are of the opinion that the Corporation may work out the other modalities as it deems fit and in accordance with law. If respondent No.1 has deposited any amount for the modernization of the plant, which has not been carried out, the Corporation may refund the amount subject to any outstanding dues.
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State of Rajasthan Vs. Shyam Lal & Others
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competence of the State legislature and does not transgress the constitutional limitations after the Constitution came into force. We are therefore of opinion that there was recognition of liability by the new State throughout this process and under the circumstances the suit was maintainable against the Part B State of Rajasthan in view of Art. 295(2) of the Constitution. In this view of the matter we consider that it is unnecessary to decide whether the particular words used in Article 295 (2) include not only the United State of Rajasthan as it was just before January 26, 1950 but also the old States which came to be merged into it through the process to which we have already referred. Whether that is so or not, it follows in view of the history to which we have referred that there was always recognition by the new State of its liability in the manner already referred to with respect to the liabilities of the merging States, and if there is any doubt about it that doubt in our opinion is resolved by the existence of Art. VI or similar provision throughout the process of these political changes.11. In this connection we may also refer to S. 3 of the Rajasthan Administration Ordinance No. 1 of 1949, which continued existing laws of the old States till they were altered by the competent legislature or other competent authority in the new State. Section 3 further said that the old laws will continue in force in the State concerned subject to the modification that reference therein to the Ruler or Government of that State shall be construed as a reference to the Rajpramukh or, as the case may be, to the Government of Rajasthan. These words also indicate that whatever could be enforced under the laws in force in a State against the Ruler or the Government of the merging State could be enforced against the Rajpramukh or the Government of the new State. This further bears out the conclusion that the new State recognised the rights of the subject of the old States flowing from the old laws and was prepared to undertake the liability that may lie on it in consequence thereof. We therefore agree with the Full Bench that the liability lay upon the State of Rajasthan because there was recognition of the liability even on the principles enunciated in the Dalmia Dadri Cement Companys case, 1959 SCR 729 : (AIR 1958 SC 816 ).In this view of the matter we need not express any view on the question whether the expression " Government of the corresponding Indian State" used in Art. 295(2) would means only the United State of Rajasthan as it was on January 26, 1950 or would also include all the former States which came to be merged in the United States of Rajasthan as it was on January 26, 1950.12. It only remains now to refer to another decision of this Court in Maharaja Shree Umaid Mills Ltd. v. Union of India, AIR 1963 SC 953 . In that case there was an agreement between the Ruler of the former State of Jodhpur and the Maharaja Shree Umaid Mills Limited by which certain exemptions from income-tax and excise duty were granted to the Mills. Two questions arose for decision there. The first was whether excise could be levied on the cloth manufactured and the second was whether income-tax could be levied on the income of the Mills, in view of the agreement between the Mills and the former Ruler of Jodhpur. The first question that was raised in that case as whether the agreement was a law; and this Court held that the agreement was not a law. With that aspect of the matter we are not concerned in the present appeals. The next question that arose was whether the agreement had been recognised by the new sovereign and reliance was placed on the continuance of laws and Art. VI of the Covenant in that connection and it was urged that in view of Art. 295 of the Constitution the exemption as provided in the agreement continued. In that case, however, there was one vital difference; even though the old laws were continued for the time being by Rajasthan Ordinance No. 1 of 1949 the new State passed the Rajasthan Excise Duties Ordinance 1949 someafter. That Ordinance clearly applied to the Mills and there was no doubt as to the States competence to enact it. In view of that law, the exemption in the agreement was held not to have been affirmed by the new State of Rajasthan. The facts of that case are thus different from the facts in the present case, for there was a competent law which clearly negatived the recognition of such an agreement and which clearly provided for excise duties. So far as income-tax was concerned it was imposed as from April 1, 1950 after the Constitution had come into force. Here again we find a law which was competently passed by Parliament and which did not transgress any of the constitutional limitations. Such a law therefore must prevail and in the presence of such a law there can be no question of recognition by the Union of the right to exemption, if any, under the agreement with the Ruler of the former Jodhpur State. Therefore with respect to both the claims raised in that case there was a law which clearly applied to the Mills and it was held that there was no recognition by the new sovereign. In the present case we have only the continuance of the old laws and the valuable evidence afforded by Art. VI of the Covenant and there is nothing to show that the rights to claim refund was taken away by any law competently passed. In this view of the matter we are of opinion that the appellant can derive no assistance from the case of Maharaja Shree Umaid Mills, AIR 1963 SC 953 .
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0[ds]We are of opinion that when the new State continued all the old laws till they were altered or repealed, and there was specific provision in each Covenant that the assets and liabilities of the Covenanting States were to be the assets and liabilities of the Union the new State must have intended to respect all the rights flowing from laws so continued and assume all liabilities arising from the existence of those laws. Otherwise we see no sense or purpose in continuing the old laws till they are altered or repealed if the intention was that the obligations and liabilities flowing from the continuance of the old laws would notwithstanding the Covenant not be assumed by the new State. If the intention was otherwise, we should have found a provision similar to that in the Pepsu case by which all the old laws were repealed in the merging States except Patiala and the Patiala laws were to continue in the entire territory giving rise to such rights only as the Patiala Laws recognised or conferred. But where as in the present case the old laws were to continue till they were repealed or altered it follows in our opinion that the rights arising under the old laws in the subjects of the merging States would continue and these subjects would have the same rights against the view State as they would have under the old laws against the merging State. Thus by continuing the old laws, till they are repealed altered or modified, the new State in effect undertook the liability which might arise against it by virtue of the continuance of the old laws. Even if there was some doubt about the new State undertaking the liabilities of the old State in view of the continuance of the old laws we can in accordance with the decision in Dalmia Dadri Cement Co.s case, 1959 SCR 729 : (AIR 1958 SC 816 ) look to Art. VI of the Covenant to come to the conclusion that on continuing the old laws, until they were altered, repealed or modified the new State intended to affirm the rights of the subjects which they had against the merging State and to assume itself the liability if any arising against the merging State. This is the basic difference between Dalmia Dadri Cement Companys case, 1959 SCR 729 : (AIR 1958 SC 816 ) and the present case, for in that case the old laws were repealed and thus repudiated in areas other than Patiala State while in the present case the old laws were continued till they were repealed or altered; and in view of that basic difference between that case and the present case we can legitimately call in aid Art. VI of the Covenant and similar provisions which were always made throughout this process of merger in Rajasthan and treat them as evidence from which to come to the conclusion that the new State, by continuing the old laws, without change till they were repealed or altered recognised that it was liable in the same way as would have been the merging State if there was any liability on the merging State. But this was of course subject to any law made by the new State repealing the old laws and the liabilities arising thereunder or even otherwise provided the law so made was within the competence of the new State and after the Constitution came into force it did not transgress the constitutional limitations. The result would be that the new State would be bound by the liabilities of the merging States and as similar provisions were there always throughout till we reach the Part B State of Rajasthan, it follows that there was always recognition of the rights of the subjects and that the new State assumed the liabilities of the old State, throughout this process. This was of course subject to any law passed by the new State provided that law was within its competence and after the Constitution came into force did not transgress the limitations contained therein. In these circumstances we are of opinion that the new sovereign throughout this process of integration from 1948 to 1950 must be taken to have recognised the rights of the subjects and undertaken the liability, if any of the old States. It follows therefore that the State of Rajasthan will be liable under Art. 295 (2) of the constitution to meet the liabilities of all old States which eventually were included in it subject always to this that if the new State passed any law repealing the old law which would affect the liability or even otherwise that law would prevail and the liability may disappear provided the new law is within the competence of the State legislature and does not transgress the constitutional limitations after the Constitution came into force. We are therefore of opinion that there was recognition of liability by the new State throughout this process and under the circumstances the suit was maintainable against the Part B State of Rajasthan in view of Art. 295(2) of the Constitution. In this view of the matter we consider that it is unnecessary to decide whether the particular words used in Article 295 (2) include not only the United State of Rajasthan as it was just before January 26, 1950 but also the old States which came to be merged into it through the process to which we have already referred. Whether that is so or not, it follows in view of the history to which we have referred that there was always recognition by the new State of its liability in the manner already referred to with respect to the liabilities of the merging States, and if there is any doubt about it that doubt in our opinion is resolved by the existence of Art. VI or similar provision throughout the process of these politicalthe present case we have only the continuance of the old laws and the valuable evidence afforded by Art. VI of the Covenant and there is nothing to show that the rights to claim refund was taken away by any law competently passed. In this view of the matter we are of opinion that the appellant can derive no assistance from the case of Maharaja Shree Umaid Mills, AIR 1963 SC 953 .
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competence of the State legislature and does not transgress the constitutional limitations after the Constitution came into force. We are therefore of opinion that there was recognition of liability by the new State throughout this process and under the circumstances the suit was maintainable against the Part B State of Rajasthan in view of Art. 295(2) of the Constitution. In this view of the matter we consider that it is unnecessary to decide whether the particular words used in Article 295 (2) include not only the United State of Rajasthan as it was just before January 26, 1950 but also the old States which came to be merged into it through the process to which we have already referred. Whether that is so or not, it follows in view of the history to which we have referred that there was always recognition by the new State of its liability in the manner already referred to with respect to the liabilities of the merging States, and if there is any doubt about it that doubt in our opinion is resolved by the existence of Art. VI or similar provision throughout the process of these political changes.11. In this connection we may also refer to S. 3 of the Rajasthan Administration Ordinance No. 1 of 1949, which continued existing laws of the old States till they were altered by the competent legislature or other competent authority in the new State. Section 3 further said that the old laws will continue in force in the State concerned subject to the modification that reference therein to the Ruler or Government of that State shall be construed as a reference to the Rajpramukh or, as the case may be, to the Government of Rajasthan. These words also indicate that whatever could be enforced under the laws in force in a State against the Ruler or the Government of the merging State could be enforced against the Rajpramukh or the Government of the new State. This further bears out the conclusion that the new State recognised the rights of the subject of the old States flowing from the old laws and was prepared to undertake the liability that may lie on it in consequence thereof. We therefore agree with the Full Bench that the liability lay upon the State of Rajasthan because there was recognition of the liability even on the principles enunciated in the Dalmia Dadri Cement Companys case, 1959 SCR 729 : (AIR 1958 SC 816 ).In this view of the matter we need not express any view on the question whether the expression " Government of the corresponding Indian State" used in Art. 295(2) would means only the United State of Rajasthan as it was on January 26, 1950 or would also include all the former States which came to be merged in the United States of Rajasthan as it was on January 26, 1950.12. It only remains now to refer to another decision of this Court in Maharaja Shree Umaid Mills Ltd. v. Union of India, AIR 1963 SC 953 . In that case there was an agreement between the Ruler of the former State of Jodhpur and the Maharaja Shree Umaid Mills Limited by which certain exemptions from income-tax and excise duty were granted to the Mills. Two questions arose for decision there. The first was whether excise could be levied on the cloth manufactured and the second was whether income-tax could be levied on the income of the Mills, in view of the agreement between the Mills and the former Ruler of Jodhpur. The first question that was raised in that case as whether the agreement was a law; and this Court held that the agreement was not a law. With that aspect of the matter we are not concerned in the present appeals. The next question that arose was whether the agreement had been recognised by the new sovereign and reliance was placed on the continuance of laws and Art. VI of the Covenant in that connection and it was urged that in view of Art. 295 of the Constitution the exemption as provided in the agreement continued. In that case, however, there was one vital difference; even though the old laws were continued for the time being by Rajasthan Ordinance No. 1 of 1949 the new State passed the Rajasthan Excise Duties Ordinance 1949 someafter. That Ordinance clearly applied to the Mills and there was no doubt as to the States competence to enact it. In view of that law, the exemption in the agreement was held not to have been affirmed by the new State of Rajasthan. The facts of that case are thus different from the facts in the present case, for there was a competent law which clearly negatived the recognition of such an agreement and which clearly provided for excise duties. So far as income-tax was concerned it was imposed as from April 1, 1950 after the Constitution had come into force. Here again we find a law which was competently passed by Parliament and which did not transgress any of the constitutional limitations. Such a law therefore must prevail and in the presence of such a law there can be no question of recognition by the Union of the right to exemption, if any, under the agreement with the Ruler of the former Jodhpur State. Therefore with respect to both the claims raised in that case there was a law which clearly applied to the Mills and it was held that there was no recognition by the new sovereign. In the present case we have only the continuance of the old laws and the valuable evidence afforded by Art. VI of the Covenant and there is nothing to show that the rights to claim refund was taken away by any law competently passed. In this view of the matter we are of opinion that the appellant can derive no assistance from the case of Maharaja Shree Umaid Mills, AIR 1963 SC 953 .
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continued and assume all liabilities arising from the existence of those laws. Otherwise we see no sense or purpose in continuing the old laws till they are altered or repealed if the intention was that the obligations and liabilities flowing from the continuance of the old laws would notwithstanding the Covenant not be assumed by the new State. If the intention was otherwise, we should have found a provision similar to that in the Pepsu case by which all the old laws were repealed in the merging States except Patiala and the Patiala laws were to continue in the entire territory giving rise to such rights only as the Patiala Laws recognised or conferred. But where as in the present case the old laws were to continue till they were repealed or altered it follows in our opinion that the rights arising under the old laws in the subjects of the merging States would continue and these subjects would have the same rights against the view State as they would have under the old laws against the merging State. Thus by continuing the old laws, till they are repealed altered or modified, the new State in effect undertook the liability which might arise against it by virtue of the continuance of the old laws. Even if there was some doubt about the new State undertaking the liabilities of the old State in view of the continuance of the old laws we can in accordance with the decision in Dalmia Dadri Cement Co.s case, 1959 SCR 729 : (AIR 1958 SC 816 ) look to Art. VI of the Covenant to come to the conclusion that on continuing the old laws, until they were altered, repealed or modified the new State intended to affirm the rights of the subjects which they had against the merging State and to assume itself the liability if any arising against the merging State. This is the basic difference between Dalmia Dadri Cement Companys case, 1959 SCR 729 : (AIR 1958 SC 816 ) and the present case, for in that case the old laws were repealed and thus repudiated in areas other than Patiala State while in the present case the old laws were continued till they were repealed or altered; and in view of that basic difference between that case and the present case we can legitimately call in aid Art. VI of the Covenant and similar provisions which were always made throughout this process of merger in Rajasthan and treat them as evidence from which to come to the conclusion that the new State, by continuing the old laws, without change till they were repealed or altered recognised that it was liable in the same way as would have been the merging State if there was any liability on the merging State. But this was of course subject to any law made by the new State repealing the old laws and the liabilities arising thereunder or even otherwise provided the law so made was within the competence of the new State and after the Constitution came into force it did not transgress the constitutional limitations. The result would be that the new State would be bound by the liabilities of the merging States and as similar provisions were there always throughout till we reach the Part B State of Rajasthan, it follows that there was always recognition of the rights of the subjects and that the new State assumed the liabilities of the old State, throughout this process. This was of course subject to any law passed by the new State provided that law was within its competence and after the Constitution came into force did not transgress the limitations contained therein. In these circumstances we are of opinion that the new sovereign throughout this process of integration from 1948 to 1950 must be taken to have recognised the rights of the subjects and undertaken the liability, if any of the old States. It follows therefore that the State of Rajasthan will be liable under Art. 295 (2) of the constitution to meet the liabilities of all old States which eventually were included in it subject always to this that if the new State passed any law repealing the old law which would affect the liability or even otherwise that law would prevail and the liability may disappear provided the new law is within the competence of the State legislature and does not transgress the constitutional limitations after the Constitution came into force. We are therefore of opinion that there was recognition of liability by the new State throughout this process and under the circumstances the suit was maintainable against the Part B State of Rajasthan in view of Art. 295(2) of the Constitution. In this view of the matter we consider that it is unnecessary to decide whether the particular words used in Article 295 (2) include not only the United State of Rajasthan as it was just before January 26, 1950 but also the old States which came to be merged into it through the process to which we have already referred. Whether that is so or not, it follows in view of the history to which we have referred that there was always recognition by the new State of its liability in the manner already referred to with respect to the liabilities of the merging States, and if there is any doubt about it that doubt in our opinion is resolved by the existence of Art. VI or similar provision throughout the process of these politicalthe present case we have only the continuance of the old laws and the valuable evidence afforded by Art. VI of the Covenant and there is nothing to show that the rights to claim refund was taken away by any law competently passed. In this view of the matter we are of opinion that the appellant can derive no assistance from the case of Maharaja Shree Umaid Mills, AIR 1963 SC 953 .
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Glaxosmithkline Pharmaceuticals Limited & Another Vs. Union of India & Others
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for the said formulation be period of exemption and thereby would be action against the public interest. In this regard the learned counsel for the respondents particularly highlighted the fact that the quantity manufactured by the petitioner company during 1st January, 1995 to 17th July, 1995 was only 38,32,975 strips whereas the quantity sold during the said period as per the ORG was Rs.1,58,45,148 strips. The purpose of Guideline 1 of 1989 is to sub serve the provisions of DPCO and the guidelines should not be interpreted in such a mariner as to conflict with the provisions of DPCO itself. If the interpretation suggested by the petitioners is accepted it would make the provisions of the DPCO especially paras 15 and 17 completely meaningless. The DPCO, 1987 specifically provide that the ceiling price has to be adopted by all the units within the prescribed period and Guideline 1 of 1987 cannot be interpreted contrary to the said provisions of DFCO, 1987. 13. In B.K. Industry & ors. vs. Union of India, AIR 1993 SC 2123 , the Supreme Court applying the previous decision in Keshavanand Shiratis case held that the power of exemption cannot be utilized for, nor can it extend to the scrapping of the very Act itself. Applying the same analogy the court observed that the power of exemption cannot be utilized to License with the very levy created under section 3 of the Essential Commodities Act and for that matter under section 3 of he Central Excise Act in the light of this settled position of law, we are inclined to hold that the interpretation suggested by the petitioner company cannot be accepted as it would render or frustrate the object of DPCO, 1987. Primarily the objective behind the Essential Commodities Act, 1955 and DPCO, 1987 is to ensure that essential commodities are made available and accessible to the consumers at large at a reasonable and fair price and with this objective that the Central Government has been empowered to fix the ceiling price. Therefore it would not be open for the company to sell a drug beyond the ceiling price once exemption comes to an end. We have therefore no hesitation in rejecting the submission that recovery should be restricted only to the drug manufactured during the period from 1st January 1995 to 17th July, 1995.14. The next submission made an behalf of the petitioner company is that there was no provision in DPCO, 1987 compelling the petitioner company to adopt ceiling price fixed by the Government of India. DPCO, 1987 specifically contemplated that before expiry of the exemption period a manufacturer Would submit an application in Form 1 for Taxation of the price of such a building under the provisions of the DPCO, 1987. Our attention was also drawn to Clause (L) of Guideline 1 of 1995, which reads as under:"The manufacturer who has been given such price exemption for a bulk drug shall submit application(s) in form I and form II of the Drugs (Price Control) Orders 1995 for fixation of price of such bulk drug(s) and formulations respectively under the provisions of the said Order, four months before the expiry of the period of exemption. However, if there is an existing notified price for bulk drug or ceiling price for formulations, the manufacturer shall follow the same on the expiry of the exemption and obtain price approval for non-ceiling packs of formulation(s) based an that bulk drug"It is submitted that in the absence of similar provision in DPCO, 1987 the company was not bound to accept the ceiling price fixed by the Government and till the ceiling price was fixed in accordance with the Guidelines the company was entitled to sell the drug at such price fixed by it.15. In our opinion, the submission is devoid of any substance. Under the substantive part of DPCO, 1987 the ceiling price in respect of scheduled formulation was included in paras 8 and 9(6) and all the manufacturers of the formulations had to adopt ceiling price within 15 days of the date of notification Paras 8 and 9(6) are reproduced herein below:"8. Power of Government to fix ceiling prices of formulations specified in Category I of the Third Schedule- (1) The Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a formulation specified in Category I of the Third Schedule in accordance with provisions of paragraphs 6 and 7 and such price shall operate as the ceiling sale price for every manufacturer of such formulations.(2) The Government may, of its own motion or an application, made to it in this behalf by a manufacturer in form 2 or form 3 as the case may be, after, calling for such information as it may consider necessary, by notification in the Official Gazette for a revised ceiling price for a formulation.9(6). Without prejudice to the provisions of the preceding sub-paragraphs-a) The Government may, if it considers necessary or expedient so to do, by notification in the Official Gazette, fix or revise a ceiling price for any formulation specified in the Third Schedule and any manufacturer of such formulation may sell such formulation at a price not exceeding the price so notified and intimate the Government accordingly.(b) With a view to enabling the manufacturers of similar formulations in pack sizes other than those for which ceiling prices referred to in the above sub-paragraphs have been notified, to market such formulation packs at worked out prices, the Government may, by notification in the Official Gazette fix norms from time to time and such manufacturer shall work out the price of their respective formulation packs in accordance with such norms and marks such formulation packs after thirty days of intimation to the Government in this behalf.Provided that the Government; may, if it considers necessary by order, revise the price so intimated by the manufacturer and upon such revision, such manufacturer shall not sell such formulation at a price exceeding the price so revised".
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0[ds]15. In our opinion, the submission is devoid of any substance. Under the substantive part of DPCO, 1987 the ceiling price in respect of scheduled formulation was included in paras 8 and 9(6) and all the manufacturers of the formulations had to adopt ceiling price within 15 days of the date of notification Paras 8 and 9(6) are reproduced herein below:"8. Power of Government to fix ceiling prices of formulations specified in Category I of the Third Schedule(1) The Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a formulation specified in Category I of the Third Schedule in accordance with provisions of paragraphs 6 and 7 and such price shall operate as the ceiling sale price for every manufacturer of such formulations.(2) The Government may, of its own motion or an application, made to it in this behalf by a manufacturer in form 2 or form 3 as the case may be, after, calling for such information as it may consider necessary, by notification in the Official Gazette for a revised ceiling price for a formulation.9(6). Without prejudice to the provisions of the precedingThe Government may, if it considers necessary or expedient so to do, by notification in the Official Gazette, fix or revise a ceiling price for any formulation specified in the Third Schedule and any manufacturer of such formulation may sell such formulation at a price not exceeding the price so notified and intimate the Government accordingly.(b) With a view to enabling the manufacturers of similar formulations in pack sizes other than those for which ceiling prices referred to in the abovehave been notified, to market such formulation packs at worked out prices, the Government may, by notification in the Official Gazette fix norms from time to time and such manufacturer shall work out the price of their respective formulation packs in accordance with such norms and marks such formulation packs after thirty days of intimation to the Government in this behalf.Provided that the Government; may, if it considers necessary by order, revise the price so intimated by the manufacturer and upon such revision, such manufacturer shall not sell such formulation at a price exceeding the price so revised".
| 0 | 5,026 | 423 |
### 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:
for the said formulation be period of exemption and thereby would be action against the public interest. In this regard the learned counsel for the respondents particularly highlighted the fact that the quantity manufactured by the petitioner company during 1st January, 1995 to 17th July, 1995 was only 38,32,975 strips whereas the quantity sold during the said period as per the ORG was Rs.1,58,45,148 strips. The purpose of Guideline 1 of 1989 is to sub serve the provisions of DPCO and the guidelines should not be interpreted in such a mariner as to conflict with the provisions of DPCO itself. If the interpretation suggested by the petitioners is accepted it would make the provisions of the DPCO especially paras 15 and 17 completely meaningless. The DPCO, 1987 specifically provide that the ceiling price has to be adopted by all the units within the prescribed period and Guideline 1 of 1987 cannot be interpreted contrary to the said provisions of DFCO, 1987. 13. In B.K. Industry & ors. vs. Union of India, AIR 1993 SC 2123 , the Supreme Court applying the previous decision in Keshavanand Shiratis case held that the power of exemption cannot be utilized for, nor can it extend to the scrapping of the very Act itself. Applying the same analogy the court observed that the power of exemption cannot be utilized to License with the very levy created under section 3 of the Essential Commodities Act and for that matter under section 3 of he Central Excise Act in the light of this settled position of law, we are inclined to hold that the interpretation suggested by the petitioner company cannot be accepted as it would render or frustrate the object of DPCO, 1987. Primarily the objective behind the Essential Commodities Act, 1955 and DPCO, 1987 is to ensure that essential commodities are made available and accessible to the consumers at large at a reasonable and fair price and with this objective that the Central Government has been empowered to fix the ceiling price. Therefore it would not be open for the company to sell a drug beyond the ceiling price once exemption comes to an end. We have therefore no hesitation in rejecting the submission that recovery should be restricted only to the drug manufactured during the period from 1st January 1995 to 17th July, 1995.14. The next submission made an behalf of the petitioner company is that there was no provision in DPCO, 1987 compelling the petitioner company to adopt ceiling price fixed by the Government of India. DPCO, 1987 specifically contemplated that before expiry of the exemption period a manufacturer Would submit an application in Form 1 for Taxation of the price of such a building under the provisions of the DPCO, 1987. Our attention was also drawn to Clause (L) of Guideline 1 of 1995, which reads as under:"The manufacturer who has been given such price exemption for a bulk drug shall submit application(s) in form I and form II of the Drugs (Price Control) Orders 1995 for fixation of price of such bulk drug(s) and formulations respectively under the provisions of the said Order, four months before the expiry of the period of exemption. However, if there is an existing notified price for bulk drug or ceiling price for formulations, the manufacturer shall follow the same on the expiry of the exemption and obtain price approval for non-ceiling packs of formulation(s) based an that bulk drug"It is submitted that in the absence of similar provision in DPCO, 1987 the company was not bound to accept the ceiling price fixed by the Government and till the ceiling price was fixed in accordance with the Guidelines the company was entitled to sell the drug at such price fixed by it.15. In our opinion, the submission is devoid of any substance. Under the substantive part of DPCO, 1987 the ceiling price in respect of scheduled formulation was included in paras 8 and 9(6) and all the manufacturers of the formulations had to adopt ceiling price within 15 days of the date of notification Paras 8 and 9(6) are reproduced herein below:"8. Power of Government to fix ceiling prices of formulations specified in Category I of the Third Schedule- (1) The Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a formulation specified in Category I of the Third Schedule in accordance with provisions of paragraphs 6 and 7 and such price shall operate as the ceiling sale price for every manufacturer of such formulations.(2) The Government may, of its own motion or an application, made to it in this behalf by a manufacturer in form 2 or form 3 as the case may be, after, calling for such information as it may consider necessary, by notification in the Official Gazette for a revised ceiling price for a formulation.9(6). Without prejudice to the provisions of the preceding sub-paragraphs-a) The Government may, if it considers necessary or expedient so to do, by notification in the Official Gazette, fix or revise a ceiling price for any formulation specified in the Third Schedule and any manufacturer of such formulation may sell such formulation at a price not exceeding the price so notified and intimate the Government accordingly.(b) With a view to enabling the manufacturers of similar formulations in pack sizes other than those for which ceiling prices referred to in the above sub-paragraphs have been notified, to market such formulation packs at worked out prices, the Government may, by notification in the Official Gazette fix norms from time to time and such manufacturer shall work out the price of their respective formulation packs in accordance with such norms and marks such formulation packs after thirty days of intimation to the Government in this behalf.Provided that the Government; may, if it considers necessary by order, revise the price so intimated by the manufacturer and upon such revision, such manufacturer shall not sell such formulation at a price exceeding the price so revised".
### Response:
0
### Explanation:
15. In our opinion, the submission is devoid of any substance. Under the substantive part of DPCO, 1987 the ceiling price in respect of scheduled formulation was included in paras 8 and 9(6) and all the manufacturers of the formulations had to adopt ceiling price within 15 days of the date of notification Paras 8 and 9(6) are reproduced herein below:"8. Power of Government to fix ceiling prices of formulations specified in Category I of the Third Schedule(1) The Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a formulation specified in Category I of the Third Schedule in accordance with provisions of paragraphs 6 and 7 and such price shall operate as the ceiling sale price for every manufacturer of such formulations.(2) The Government may, of its own motion or an application, made to it in this behalf by a manufacturer in form 2 or form 3 as the case may be, after, calling for such information as it may consider necessary, by notification in the Official Gazette for a revised ceiling price for a formulation.9(6). Without prejudice to the provisions of the precedingThe Government may, if it considers necessary or expedient so to do, by notification in the Official Gazette, fix or revise a ceiling price for any formulation specified in the Third Schedule and any manufacturer of such formulation may sell such formulation at a price not exceeding the price so notified and intimate the Government accordingly.(b) With a view to enabling the manufacturers of similar formulations in pack sizes other than those for which ceiling prices referred to in the abovehave been notified, to market such formulation packs at worked out prices, the Government may, by notification in the Official Gazette fix norms from time to time and such manufacturer shall work out the price of their respective formulation packs in accordance with such norms and marks such formulation packs after thirty days of intimation to the Government in this behalf.Provided that the Government; may, if it considers necessary by order, revise the price so intimated by the manufacturer and upon such revision, such manufacturer shall not sell such formulation at a price exceeding the price so revised".
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Sirpur Paper Mills Ltd Vs. Director Of Inspector, Commissioner Of Central Excise And Another
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CA No. 3328 of 1981 1. So far as this appeal is concerned, the question is whether the duty of excise whereof tax credit is available would be in respect of such duty of excise as is chargeable under the Central Excises and Salt Act alone. The question has already been answered by this Court in the case of Associated Cement Co. Ltd. v. Director of Inspection, Customs and Central Excise. In that case, it was held that the tax credit has to be confined to the Central Excises and Salt Act only. In view of that this appeal is dismissed. No order as to costs CA No. 3300 of 1981 2. The facts of this case are not in dispute. The respondent Company is manufacturing various types of papers. The contention of the Department is that "paper" (all sorts) will include all sorts of papers manufactured by the company and all types of papers have to be taken together to find out whether the production made in the base year has been exceeded. The High Court has taken the view that the base year production must be taken separately for each type of paper manufactured by the company. The High Court has pointed out that the goods are excisable as and when produced and are assessable under various tariff entries separately. Therefore, each type of papers which are excisable separately will be entitled to relief also separately
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0[ds]2. The facts of this case are not in dispute. The respondent Company is manufacturing various types of papers. The contention of the Department is that "paper" (all sorts) will include all sorts of papers manufactured by the company and all types of papers have to be taken together to find out whether the production made in the base year has been exceeded. The High Court has taken the view that the base year production must be taken separately for each type of paper manufactured by the company. The High Court has pointed out that the goods are excisable as and when produced and are assessable under various tariff entries separately. Therefore, each type of papers which are excisable separately will be entitled to relief also separately
| 0 | 259 | 142 |
### 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:
CA No. 3328 of 1981 1. So far as this appeal is concerned, the question is whether the duty of excise whereof tax credit is available would be in respect of such duty of excise as is chargeable under the Central Excises and Salt Act alone. The question has already been answered by this Court in the case of Associated Cement Co. Ltd. v. Director of Inspection, Customs and Central Excise. In that case, it was held that the tax credit has to be confined to the Central Excises and Salt Act only. In view of that this appeal is dismissed. No order as to costs CA No. 3300 of 1981 2. The facts of this case are not in dispute. The respondent Company is manufacturing various types of papers. The contention of the Department is that "paper" (all sorts) will include all sorts of papers manufactured by the company and all types of papers have to be taken together to find out whether the production made in the base year has been exceeded. The High Court has taken the view that the base year production must be taken separately for each type of paper manufactured by the company. The High Court has pointed out that the goods are excisable as and when produced and are assessable under various tariff entries separately. Therefore, each type of papers which are excisable separately will be entitled to relief also separately
### Response:
0
### Explanation:
2. The facts of this case are not in dispute. The respondent Company is manufacturing various types of papers. The contention of the Department is that "paper" (all sorts) will include all sorts of papers manufactured by the company and all types of papers have to be taken together to find out whether the production made in the base year has been exceeded. The High Court has taken the view that the base year production must be taken separately for each type of paper manufactured by the company. The High Court has pointed out that the goods are excisable as and when produced and are assessable under various tariff entries separately. Therefore, each type of papers which are excisable separately will be entitled to relief also separately
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Attar Singh Vs. State Of Maharashtra
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that the intensity with which he hit his wife after abusing her is indicative of the fact that he was not oblivious of the consequence which would have resulted from his violent act of beating his wife with a log of wood. Thus, it will have to be inferred that he had sufficient knowledge about the consequence of his heinous act at least to the extent that it was sufficient in the ordinary course of nature to cause death of his wife. He was thus fully aware of the consequence that this would result in a serious consequence and in fact it did result in the said manner since the wife died as a result of the injury inflicted on her. In fact, when the village Kotwal reached the incident, the deceased did not even expressed any remorse for what he had done to his wife nor he appeared to be repentant of the incident. This clearly reflects his state of mind that he committed the crime with full knowledge to kill his wife Nagibai on account of his deep seated grudge which he was carrying since long. Therefore, the submission of the counsel for the appellant that the charge under Section 302 I.P.C. should be converted into one under Section 304 Part-II I.P.C. is fit to be rejected and accordingly we do so. 19. The matter, however, do not set at rest at this stage as the evidence on record and the surrounding circumstances compels us to consider further, whether the offence would be made out under Section 302 I.P.C. or the same would fall under Section 304 Part-I of the I.P.C. since the appellant-accused and his wife-Nagibai had been married for a long time and were having nine children as also the manner of occurrence and the circumstance under which the incident happened does indicate that the incident of hot exchange of words between the accused-appellant and his deceased-wife got precipitated and as the appellant was already aggrieved of his wife suspecting her character, he hit his wife severely with whatever was available without caring for the consequence. Thus, the intention to kill his wife and the knowledge that she would be killed due to the hard hit blow by the log of wood surely cannot be ruled out. We take assistance from the observations of this Court quoted hereinabove that in all cases it cannot be said that when only a single blow is given, Section 302 I.P.C. is made out. Yet it would depend upon the factual scenario of each case more particularly nature of the offence, background facts and the part of the body where injury is inflicted and the circumstances in which the assault is made. 20. Taking assistance from these apt and relevant considerations when we examined the case of the appellant, we have noticed that the appellant was living with his deceased wife day in and day out, but none of the witness has deposed that she was abused and beaten earlier. Thus, there is lack of evidence that on the fateful day the appellant-husband had the pre-meditated intention to kill the deceased with a log of wood due to which he inflicted the fatal blow on the deceased. The anger and frustration no doubt was acute in the mind of the appellant on account of his suspicion which aggravated due to hot exchange of words and abuses resulting into loss of mental balance as a consequence of which he hit his wife with such intensity that she died on the spot itself. In view of this the appellant will have to be attributed with the knowledge that his act was sufficient in the ordinary course of nature to kill the victim-wife. 21. Thus, in our view, the accused-appellant although might not be attributed with the intention to kill his wife, sufficient knowledge that his act would result into killing her was definitely there in the appellants mind and he in fact gave vent to his feeling by finally killing her when he hit her with a woodenlog to take revenge for her alleged infidelity without realising that suspicion of her fidelity was not proved and even if it did, that gave no right to him to kill his wife in a brutal manner by hitting her hard enough with a log of wood with such intensity which was sufficient in the ordinary course of nature to kill the victim. 22. There are no dearth of incidents referred in the case laws where the husband has gone to the extent of shooting his wife and many a times a paramour shoots the husband or the husband shoots the paramour on account of suspicion founded or unfounded. But if the evidence discloses that the accused killed the victim in a pre- meditated manner as for instance by using a firearm, the same might be a clear case under Section 302 of the I.P.C. But the facts and circumstances of the incident in which the appellant has been convicted, indicate that the accused-appellant was not armed with any weapon or a firearm. As already noticed the evidence do not disclose in any manner that the appellant had come with a pre-meditated mind to kill his wife, but it was only in course of hot exchange of words and abuses which mindlessly drove him to take the extreme step of beating his wife with a log of wood with such force and intensity that she sustained head injury, profusely bled and finally died on the spot. 23. We are, therefore, of the considered view that although the conviction and sentence of the appellant might not be sustainable under Section 302 I.P.C., it cannot also be scaled down to Section 304 Part-II I.P.C. But we are surely of the view that the appellant is fit to be convicted and sentenced under Section 304 Part-I of the I.P.C. in view of the evidence on record, the surrounding circumstance and the factual scenario in which the incident occurred.
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1[ds]our view, the accused-appellant although might not be attributed with the intention to kill his wife, sufficient knowledge that his act would result into killing her was definitely there in the appellants mind and he in fact gave vent to his feeling by finally killing her when he hit her with a woodenlog to take revenge for her alleged infidelity without realising that suspicion of her fidelity was not proved and even if it did, that gave no right to him to kill his wife in a brutal manner by hitting her hard enough with a log of wood with such intensity which was sufficient in the ordinary course of nature to kill the victim23. We are, therefore, of the considered view that although the conviction and sentence of the appellant might not be sustainable under Section 302 I.P.C., it cannot also be scaled down to Section 304 Part-II I.P.C. But we are surely of the view that the appellant is fit to be convicted and sentenced under Section 304 Part-I of the I.P.C. in view of the evidence on record, the surrounding circumstance and the factual scenario in which the incident occurred.
| 1 | 4,626 | 209 |
### 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:
that the intensity with which he hit his wife after abusing her is indicative of the fact that he was not oblivious of the consequence which would have resulted from his violent act of beating his wife with a log of wood. Thus, it will have to be inferred that he had sufficient knowledge about the consequence of his heinous act at least to the extent that it was sufficient in the ordinary course of nature to cause death of his wife. He was thus fully aware of the consequence that this would result in a serious consequence and in fact it did result in the said manner since the wife died as a result of the injury inflicted on her. In fact, when the village Kotwal reached the incident, the deceased did not even expressed any remorse for what he had done to his wife nor he appeared to be repentant of the incident. This clearly reflects his state of mind that he committed the crime with full knowledge to kill his wife Nagibai on account of his deep seated grudge which he was carrying since long. Therefore, the submission of the counsel for the appellant that the charge under Section 302 I.P.C. should be converted into one under Section 304 Part-II I.P.C. is fit to be rejected and accordingly we do so. 19. The matter, however, do not set at rest at this stage as the evidence on record and the surrounding circumstances compels us to consider further, whether the offence would be made out under Section 302 I.P.C. or the same would fall under Section 304 Part-I of the I.P.C. since the appellant-accused and his wife-Nagibai had been married for a long time and were having nine children as also the manner of occurrence and the circumstance under which the incident happened does indicate that the incident of hot exchange of words between the accused-appellant and his deceased-wife got precipitated and as the appellant was already aggrieved of his wife suspecting her character, he hit his wife severely with whatever was available without caring for the consequence. Thus, the intention to kill his wife and the knowledge that she would be killed due to the hard hit blow by the log of wood surely cannot be ruled out. We take assistance from the observations of this Court quoted hereinabove that in all cases it cannot be said that when only a single blow is given, Section 302 I.P.C. is made out. Yet it would depend upon the factual scenario of each case more particularly nature of the offence, background facts and the part of the body where injury is inflicted and the circumstances in which the assault is made. 20. Taking assistance from these apt and relevant considerations when we examined the case of the appellant, we have noticed that the appellant was living with his deceased wife day in and day out, but none of the witness has deposed that she was abused and beaten earlier. Thus, there is lack of evidence that on the fateful day the appellant-husband had the pre-meditated intention to kill the deceased with a log of wood due to which he inflicted the fatal blow on the deceased. The anger and frustration no doubt was acute in the mind of the appellant on account of his suspicion which aggravated due to hot exchange of words and abuses resulting into loss of mental balance as a consequence of which he hit his wife with such intensity that she died on the spot itself. In view of this the appellant will have to be attributed with the knowledge that his act was sufficient in the ordinary course of nature to kill the victim-wife. 21. Thus, in our view, the accused-appellant although might not be attributed with the intention to kill his wife, sufficient knowledge that his act would result into killing her was definitely there in the appellants mind and he in fact gave vent to his feeling by finally killing her when he hit her with a woodenlog to take revenge for her alleged infidelity without realising that suspicion of her fidelity was not proved and even if it did, that gave no right to him to kill his wife in a brutal manner by hitting her hard enough with a log of wood with such intensity which was sufficient in the ordinary course of nature to kill the victim. 22. There are no dearth of incidents referred in the case laws where the husband has gone to the extent of shooting his wife and many a times a paramour shoots the husband or the husband shoots the paramour on account of suspicion founded or unfounded. But if the evidence discloses that the accused killed the victim in a pre- meditated manner as for instance by using a firearm, the same might be a clear case under Section 302 of the I.P.C. But the facts and circumstances of the incident in which the appellant has been convicted, indicate that the accused-appellant was not armed with any weapon or a firearm. As already noticed the evidence do not disclose in any manner that the appellant had come with a pre-meditated mind to kill his wife, but it was only in course of hot exchange of words and abuses which mindlessly drove him to take the extreme step of beating his wife with a log of wood with such force and intensity that she sustained head injury, profusely bled and finally died on the spot. 23. We are, therefore, of the considered view that although the conviction and sentence of the appellant might not be sustainable under Section 302 I.P.C., it cannot also be scaled down to Section 304 Part-II I.P.C. But we are surely of the view that the appellant is fit to be convicted and sentenced under Section 304 Part-I of the I.P.C. in view of the evidence on record, the surrounding circumstance and the factual scenario in which the incident occurred.
### Response:
1
### Explanation:
our view, the accused-appellant although might not be attributed with the intention to kill his wife, sufficient knowledge that his act would result into killing her was definitely there in the appellants mind and he in fact gave vent to his feeling by finally killing her when he hit her with a woodenlog to take revenge for her alleged infidelity without realising that suspicion of her fidelity was not proved and even if it did, that gave no right to him to kill his wife in a brutal manner by hitting her hard enough with a log of wood with such intensity which was sufficient in the ordinary course of nature to kill the victim23. We are, therefore, of the considered view that although the conviction and sentence of the appellant might not be sustainable under Section 302 I.P.C., it cannot also be scaled down to Section 304 Part-II I.P.C. But we are surely of the view that the appellant is fit to be convicted and sentenced under Section 304 Part-I of the I.P.C. in view of the evidence on record, the surrounding circumstance and the factual scenario in which the incident occurred.
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Shailesh Harilal Shah Vs. Matushree Textiles Limited
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[1973] 45 Comp Cas 17 (Bom) and the decision in Sheth Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd. [1964] 34 Comp Cas 777 (Guj); AIR 1965 Guj 96 . Learned counsel urged that item 8 of the ninth annual report sets out a resolution conferring power upon the board of directors to make any loan to any body corporate from time to time on such terms and conditions as the directors may deem fit provided that the aggregate of the loans outstanding at any one time made to the company shall not exceed 30 per cent. of the aggregate of the subscribed share capital. The explanatory note to item No. 8 sets out that in the course of business, the company may have to make loans or deposits, etc. , to bodies corporate in excess of the limits and section 370 of the act provides that no company shall make any loan or loans to any body corporate in excess of the limits fixed by the Central Government unless making of such loans has been previously authorised by a special resolution of the lending company. The explanatory note recites that the company may have surplus funds during off season which the board of directors may utilise for giving loans and it is, therefore, advisable in the interest of the company to obtain the consent of the members by special resolution. Shri Kapadia complains that the explanation is a tricky one because the claim that the company may have surplus funds is totally false. Reference was made to the minutes of the meeting held on January 1, 1991, at which meeting Santoshkumar was appointed as additional director. One of the reasons set out for appointing Santoshkumar was that the business of the company of manufacturing cotton printed sarees and texturised/twisted yarn and P. O. Y. was undergoing recession and the company under the circumstances of the crisis has trying times ahead and Santoshkumar can help the company to come out of the crisis. Shri kapadia submits that this reason is indicative of the fact that the financial state of the company was not healthy and if that is so, it is impossible to imagine that the company may have surplus funds as set out in the explanatory statement. It was urged that the power was sought by the board of directors only with a view to siphon away the funds of the company to the concerns in which defendants Nos. 2 and 3 have control and interest. Learned counsel urged that the fact that the company did not give a truthful explanation is sufficient to invalidate the resolutions passed at the meetings. It is not possible to find any merit in the contention for more than one reason. In the first instance, the claim that the financial health of the company was not sound cannot be accepted merely because in the meeting held on January 1, 1991, one of the reasons given for nominating Santoshkumar was to overcome the recession in the market and which was due to the gulf War and money conditions being tight. It is not correct that the financial condition of the the company was not sound because one of the resolutions at the ninth annual general meeting was to declare a divided. Shri Kapadia submitted that the company wants to disburse the dividend not out of the profits but out of the assets of the company and declaration of dividend was a ruse to mislead the shareholders. It is not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs from remaining present at the annual general meeting and raising objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the board of directors would siphon off the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the company or had given loans to bodies corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that resolution No. 8 at the ninth annual general meeting was for the purpose of enabling the board of director to grant loans to the own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during the off season and the conferring of a power cannot necessarily lead to the inference that the power was to be misused by the board of directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the annual general meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the annual general meetings. ( 30 ) IT is required to be mentioned that though the plaintiffs had claimed before the trial court that the company had no authority to convene the eighth annual general meeting after December, 1990, the said contention was not pressed by Shri Kapadia the during the arguments. The trial judge negatived the contention by holding that there is no prohibition on holding annual general meeting after the statutory period and the only consequence is of penalty payable by the company. In the absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relied and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements field by the parties.
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0[ds]It is undoubtedly true as held by the Supreme Court that the director is an agent of the company but the assumption of the plaintiffs that the relationship of principal and agent can be created only by contract is not accurate. The relationship can be created by operation of law and in such cases, the relationship cannot to be treated as a contract. The director is treated as an agent or a trustee by operation of law and not because the company or shareholders have entered into contractual relationship with the person purposed to be appointed as a director. We are in agreement with the view expressed by the learned single judge of the Madras High Court that the appointment of additional director does not amount to a contract as contemplated by section 300 (1) of the Act. It is also not possible to accede to the submission of Shri Kapadia that in any event the appointment of a director amounts to an arrangement under section 300 (1 ). The observation of justice Rajagopala Ayyangar that the arrangement within the meaning of section must receive thethat it must be of such a nature as would arise in the case of personal pecuniary nature in the context of the company is accurate and the expression "arrangement" must bear the meaning of it as in sections 209 and 301 of other Act. Section 301 demands that every company shall keep one or more registers in which shall be entered separately particulars of all contracts or arrangements and the particulars to be entered are the date of the contract or arrangement, the names of the parties thereto, the principal terms and conditions thereof, etc. It is impossible to accept that the appointment of the director amounts to an arrangement and it is required to be entered in the register maintained by the company under section 301 of the Act. Shri Cooper pointed out that none of the companies have entered such appointments in the register maintained under section 301 of the Act because the arrangement contemplated under section 300 though directly not a contract must take the colour from the context of contractual relationship contemplated under the section. The arrangement is something skin to a contract though not strictly a contract as contemplated by the Contract Act. There is one more aspect which cannot be overlooked. What section 300 (1) prescribes is a contractual arrangement entered into "by or on behalf of the company" and it is impossible to suggest that appointment of an additional director is by and on behalf of the company. The section postulates that the contract or arrangement is by the company or on behalf of the company and that means that the company is one of the contracting parties or parties to the arrangement. The company is not a party for making an appointment of a person as director; nor is the appointment on behalf of the company. To accept the submission that the appointment of an additional director amounts to a contract or arrangement, it would be necessary to conclude that such a contract or arrangement is by or on behalf of the company, and it is not possible to do so. In our judgment, the contention that defendant No. 3 could not have participated in the discussion or vote on the resolution to appoint defendant No. 2 as additional director in view of the prohibition of section 300 (1), therefore, cannot beour judgment, even assuming that the resolution appointing defendant No. 2 as additional director amounts to a contract or an arrangement as covered by section 300 of the Act, still the appointment of defendant No. 2, the most, would be irregular due to the participation of defendant No. 3, but the acts done by defendant No. 2 and especially in convening the annual general meeting cannot the struck down at the behest of somedecision of the house of Lords in Morris v. Kanssen [1946] 1 All ER 536 (HL) has no application to the facts of the present case, as it is not the claim of the plaintiffs that the board of directors was not properly constituted prior to January 1, 1991, In our judgment, the meeting held on January 1, 1991, was legal and valid and the action of defendants Nos. 3 and 4 as continuing directors in nominating defendant No. 2 as additional director does not suffer from any infirmity. The contention of the plaintiffs that the signing of theand the notices convening the eighth and ninth annual general meetings of the company by defendant No. 2 was vitiated and, therefore, the resolutions passed at the meetings should be struck down cannot beis not in dispute that section 171 (1) of the Act provides that the general meeting of the company may be called by not less than 21 days notice in writing.(2) of section 171 provides that the general meeting may be called after giving shorter notice if consent is accorded thereto by all the members entitled to vote thereat.(3) of section 171 provides that the accidental omission to give notice to, or theof notice by, any member or other person to whom it may be given shall not invalidate the proceedings at the meeting. The two notices convening the two meetings are dated september 2, 1991, but were posted on September 7, 1991, and were received by the plaintiffs on September 12, 1991. In view of the deeming provision under section 52 (b) (i) of the Act, the notice is deemed to have been served on the shareholders on September 9,hold that the provisions of section 171 (1) of the Act are mandatory would lead to very unusual results making it difficult for large public companies to effectively function. A couple of shareholders cannot be permitted to defeat the interest of a large body of shareholders by raising the contention that the duration of notice was not sufficient and even though such complaints do not indicate any prejudice by service of notice of shorter duration. In our judgment, looking to the object, purpose and scope of provisions of section 171 (1) of the act, the conclusion is inescapable that the provision is merely directory and notshare or debentures constitute property and the Legislature was particular that the transfers should not be effected unless the requirements of the section are strictly complied with. The reason is obvious that such holder of the share or debenture certificate should not be deprived of the properly right without the company being satisfied that the transfer is6 ) SHRI Kapadia sounded an apprehension that in case the provisions of section 171 (1) of the act are held to be directory, then every company would hold the annual general meetings by service of notice of any duration and this would defeat the object of service ofnotice. The submission is not accurate because even if the provision is held to be directory, that does not confer a charter on the company to serve notice of any duration according to their choice. Even if the provision is directory, it does not permit the company to bypass the statutory requirement and in every case where a breach is complained of, the court will have to examine whether the proceedings should be invalidated or otherwise. Learned counsel felt that a company may give notice of four or five days and will try to sustain the validity of the proceedings. It is impossible to assume that the court will close its eyes to the reality and accept the claim that notice of even one day is enough. The court will not proceed to invalidate the proceedings on the ground of insufficient duration of notice only when it is established that defect is not intentional or deliberate and no prejudice whatsoever is caused too a particular case by shorter duration of notice. It would be necessary for a party complaining of insufficient duration of notice to plead prejudice caused and in case such prejudice is established, then even though the provision is directory, the court would grant theis obvious that the plaintiffs never complained of any prejudice suffered because of shorter duration of notice and the contention urged by Shri kapadia with reference to the correspondence is imaginary. In Parashuram Detaram Shamdasani v. Tata Industrial Bank Ltd. , AIR 1928 PC 180 , it was held that the shareholders knowing the work to be transacted at the meeting and remaining absent cannot subsequently complain about insufficiency of notice for convening the meeting. In out judgment, the plaintiffs have not suffered any prejudice whatsoever by the notice being of only 20 clear days instead of 21 clear days and it is obvious that the plaintiffs are set up by Arunkumar Poddar who has personal quarrels with defendants Nos. 2 and 3 who are his real brothers. The shareholding of the plaintiff is extremely negligible being 0. 3 per cent. and it would be entirely unreasonable to invalidate the business transacted at the annual general meeting at the behest of these few shareholders and to the detriment of a large body of shareholders who had unanimously approved the resolutions moved at the meetings. We enquired from learned counsel as to which resolution passed at the meeting affects the interest of the plaintiffs and the grievance seems to be only about the issuance of right shares after increasing the authorised share capital and conferring power on the board of directors to make loans to any body corporate. The issuance of the right shares to all the existing shareholders can by no stretch of imagination affect the interest of the shareholders, nor would it change the controlling pattern of shareholding of the company. The grievance about conferring power upon the board of directors to make loans to bodies corporate is the apprehension that the directors may give loans to firms and companies in which they have interest. More about it at a later stage, but the prejudice complained of seems to be only of arunkumar Poddar who has personal complaints against defendants Nos. 2 and 3 and we are not at all impressed by the claim made by learned counsel that service of notice of 20 clear days has causedto the eighth annual report, learned counsel urged that the auditors had made certain remarks and the information supplied by the company was not sufficient and, therefore, it was not possible to pass the accounts at the annual generalmeeting. We are unable to find any merit in the contention. The directors report clearly recites that information as per section 217 of the Act is supplied and notes Nos. 5 to 8 on which counsel laid stress refer to estimated gratuity and liability, sundry debts, and interest on overdue bills and, in our judgment, the information supplied cannot be said to be insufficient so as to make it impossible for the shareholders to pass theis not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs from remaining present at the annual general meeting and raising objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the board of directors would siphon off the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the company or had given loans to bodies corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that resolution No. 8 at the ninth annual general meeting was for the purpose of enabling the board of director to grant loans to the own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during the off season and the conferring of a power cannot necessarily lead to the inference that the power was to be misused by the board of directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the annual general meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the annual general30 ) IT is required to be mentioned that though the plaintiffs had claimed before the trial court that the company had no authority to convene the eighth annual general meeting after December, 1990, the said contention was not pressed by Shri Kapadia the during the arguments. The trial judge negatived the contention by holding that there is no prohibition on holding annual general meeting after the statutory period and the only consequence is of penalty payable by the company. In the absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relied and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements field by the parties.
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[1973] 45 Comp Cas 17 (Bom) and the decision in Sheth Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd. [1964] 34 Comp Cas 777 (Guj); AIR 1965 Guj 96 . Learned counsel urged that item 8 of the ninth annual report sets out a resolution conferring power upon the board of directors to make any loan to any body corporate from time to time on such terms and conditions as the directors may deem fit provided that the aggregate of the loans outstanding at any one time made to the company shall not exceed 30 per cent. of the aggregate of the subscribed share capital. The explanatory note to item No. 8 sets out that in the course of business, the company may have to make loans or deposits, etc. , to bodies corporate in excess of the limits and section 370 of the act provides that no company shall make any loan or loans to any body corporate in excess of the limits fixed by the Central Government unless making of such loans has been previously authorised by a special resolution of the lending company. The explanatory note recites that the company may have surplus funds during off season which the board of directors may utilise for giving loans and it is, therefore, advisable in the interest of the company to obtain the consent of the members by special resolution. Shri Kapadia complains that the explanation is a tricky one because the claim that the company may have surplus funds is totally false. Reference was made to the minutes of the meeting held on January 1, 1991, at which meeting Santoshkumar was appointed as additional director. One of the reasons set out for appointing Santoshkumar was that the business of the company of manufacturing cotton printed sarees and texturised/twisted yarn and P. O. Y. was undergoing recession and the company under the circumstances of the crisis has trying times ahead and Santoshkumar can help the company to come out of the crisis. Shri kapadia submits that this reason is indicative of the fact that the financial state of the company was not healthy and if that is so, it is impossible to imagine that the company may have surplus funds as set out in the explanatory statement. It was urged that the power was sought by the board of directors only with a view to siphon away the funds of the company to the concerns in which defendants Nos. 2 and 3 have control and interest. Learned counsel urged that the fact that the company did not give a truthful explanation is sufficient to invalidate the resolutions passed at the meetings. It is not possible to find any merit in the contention for more than one reason. In the first instance, the claim that the financial health of the company was not sound cannot be accepted merely because in the meeting held on January 1, 1991, one of the reasons given for nominating Santoshkumar was to overcome the recession in the market and which was due to the gulf War and money conditions being tight. It is not correct that the financial condition of the the company was not sound because one of the resolutions at the ninth annual general meeting was to declare a divided. Shri Kapadia submitted that the company wants to disburse the dividend not out of the profits but out of the assets of the company and declaration of dividend was a ruse to mislead the shareholders. It is not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs from remaining present at the annual general meeting and raising objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the board of directors would siphon off the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the company or had given loans to bodies corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that resolution No. 8 at the ninth annual general meeting was for the purpose of enabling the board of director to grant loans to the own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during the off season and the conferring of a power cannot necessarily lead to the inference that the power was to be misused by the board of directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the annual general meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the annual general meetings. ( 30 ) IT is required to be mentioned that though the plaintiffs had claimed before the trial court that the company had no authority to convene the eighth annual general meeting after December, 1990, the said contention was not pressed by Shri Kapadia the during the arguments. The trial judge negatived the contention by holding that there is no prohibition on holding annual general meeting after the statutory period and the only consequence is of penalty payable by the company. In the absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relied and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements field by the parties.
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five days and will try to sustain the validity of the proceedings. It is impossible to assume that the court will close its eyes to the reality and accept the claim that notice of even one day is enough. The court will not proceed to invalidate the proceedings on the ground of insufficient duration of notice only when it is established that defect is not intentional or deliberate and no prejudice whatsoever is caused too a particular case by shorter duration of notice. It would be necessary for a party complaining of insufficient duration of notice to plead prejudice caused and in case such prejudice is established, then even though the provision is directory, the court would grant theis obvious that the plaintiffs never complained of any prejudice suffered because of shorter duration of notice and the contention urged by Shri kapadia with reference to the correspondence is imaginary. In Parashuram Detaram Shamdasani v. Tata Industrial Bank Ltd. , AIR 1928 PC 180 , it was held that the shareholders knowing the work to be transacted at the meeting and remaining absent cannot subsequently complain about insufficiency of notice for convening the meeting. In out judgment, the plaintiffs have not suffered any prejudice whatsoever by the notice being of only 20 clear days instead of 21 clear days and it is obvious that the plaintiffs are set up by Arunkumar Poddar who has personal quarrels with defendants Nos. 2 and 3 who are his real brothers. The shareholding of the plaintiff is extremely negligible being 0. 3 per cent. and it would be entirely unreasonable to invalidate the business transacted at the annual general meeting at the behest of these few shareholders and to the detriment of a large body of shareholders who had unanimously approved the resolutions moved at the meetings. We enquired from learned counsel as to which resolution passed at the meeting affects the interest of the plaintiffs and the grievance seems to be only about the issuance of right shares after increasing the authorised share capital and conferring power on the board of directors to make loans to any body corporate. The issuance of the right shares to all the existing shareholders can by no stretch of imagination affect the interest of the shareholders, nor would it change the controlling pattern of shareholding of the company. The grievance about conferring power upon the board of directors to make loans to bodies corporate is the apprehension that the directors may give loans to firms and companies in which they have interest. More about it at a later stage, but the prejudice complained of seems to be only of arunkumar Poddar who has personal complaints against defendants Nos. 2 and 3 and we are not at all impressed by the claim made by learned counsel that service of notice of 20 clear days has causedto the eighth annual report, learned counsel urged that the auditors had made certain remarks and the information supplied by the company was not sufficient and, therefore, it was not possible to pass the accounts at the annual generalmeeting. We are unable to find any merit in the contention. The directors report clearly recites that information as per section 217 of the Act is supplied and notes Nos. 5 to 8 on which counsel laid stress refer to estimated gratuity and liability, sundry debts, and interest on overdue bills and, in our judgment, the information supplied cannot be said to be insufficient so as to make it impossible for the shareholders to pass theis not possible to accept the claim made on behalf of the plaintiffs because nothing prevented the plaintiffs from remaining present at the annual general meeting and raising objections or to impress upon other shareholders the claim of mismanagement. Secondly, the assumption of the plaintiffs that the board of directors would siphon off the funds to the concerns of defendants Nos. 2 and 3 is without any foundation. There is not a whisper of complaint in the plaints that defendants Nos. 2 and 3 have previously siphoned away the funds of the company or had given loans to bodies corporate in which these defendants have any interest. Save and except the averment made in paragraph 11 to which reference is made hereinabove, the plaintiffs have not pointed out any act of defendants Nos. 2 and 3 to create suspicion that resolution No. 8 at the ninth annual general meeting was for the purpose of enabling the board of director to grant loans to the own concerns. Thirdly, the explanatory statement also recites that the surplus funds may be available during the off season and the conferring of a power cannot necessarily lead to the inference that the power was to be misused by the board of directors. Again, it is not permissible for the plaintiffs who were fully conscious of the business to be transacted at the annual general meeting to remain absent and thereafter complain of insufficiency of information or tricky explanation. In our judgment, the challenge to the business conducted in the meetings is without any substance and there is no reason to nullify the resolutions passed at the annual general30 ) IT is required to be mentioned that though the plaintiffs had claimed before the trial court that the company had no authority to convene the eighth annual general meeting after December, 1990, the said contention was not pressed by Shri Kapadia the during the arguments. The trial judge negatived the contention by holding that there is no prohibition on holding annual general meeting after the statutory period and the only consequence is of penalty payable by the company. In the absence of any arguments on this aspect, it is not necessary to examine the finding. In our judgment, the plaintiffs have not made out any case for grant of relied and accordingly, the appeals as well as Suits Nos. 3002 and 3003 of 1991 must fail in accordance with the consent statements field by the parties.
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East & West Insurance Company Limited Vs. Kamala Jayantilal Mehta
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directors do not wish to do what the articles require them to do and leave the doing of it to some one else, they must clearly resolve to that effect.We see nothing in the resolution of 22-6-1948 to indicate that the directors, assuming they had the power of delegation, delegated to the manager not only the finalising of the notice in the sense of seeing that it was in proper form, but the substance of the matter that he was to decide whether the call was payable by instalments and the time when the instalments were to be paid.Therefore, the notice issued by the manager was without authority. Therefore, even on this narrow ground apart from the more important ground that we have considered, there was no authority in the manager, no authority given to him by the directors, to Issue a notice calling upon the share holders to pay the call by instalments and the time when those instalments should be paid.15. Another point has been urged by Mr. Desai to which a passing reference might be made. The original resolution of 3-3-1948 as already pointed out required that a notice of one month should be given to all the B class shareholders to pay the call, and Mr. Desai points out that when in fact the notice came to be given on the 7th/9th July 1948 the shareholder was called upon to pay the first instalment on 5-8-1948 which gave him less than one months notice.It was attempted to be argued by Mr. Engineer that in law the shareholder could only be proceeded against when he had failed to pay the last instalment and no liability would arise till the date fixed for the payment of the last instalment, and on that basis it was sought to be argued that the notice of the 7th/9th July really required the payment in law on 5-11-1948 and not 5-8-1948, and therefore the notice was a proper notice.Mr. Desai has rightly drawn our attention to the articles, which require calls payable by instalments to be paid at the due date of every instalment and he has also pointed out that not only is there a liability upon the shareholder to pay the instalment on the due date, but the consequence of not paying the instalment on the due date is the liability to have his shares forfeited.Therefore, whatever the decisions on which Mr. Engineer relies lay down - and those decisions would only be true with reference to the particular articles there -on the articles that we have before us it is clear that there is a liability upon the shareholder to pay the first instalment on the due date and that liability could have been enforced by the companyand therefore Mr. Desai is right that one months notice was not given to pay the first instalment and to that extent the notice failed to carry out the mandate given by the resolution of 3-3-1948.There are two answers given by Mr. Engineer to this contention. One is that even assuming the notice with regard to the first instalment is insufficient, there is no answer with regard to the notice to the second, third and fourth instalments which are all made payable more than one month after the notice, and Mr. Engineer also relied on certain English cases for the purpose of contending that a notice which is irregular does not invalidate the call.We should have thought on first principle that a requirement with regard to a notice being a concession given to the shareholder by the articles, that concession may be waived, but if it is not waived the requirement of the notice must be strictly complied with, and as no plea has been made here of a waiver of the notice by the shareholder, it is difficult to understand how if the notice is bad the Court could uphold the claim for the call. But in our opinion, it is unnecessary to decide the rather interesting question raised by counsel at the Bar.16. Some faint suggestion was also made by Mr. Engineer that the doctrine of ratification would come into play in this case and the doctrine of ratification is relied upon by reason of a resolution to which we have not yet referred, which was passed by the board of directors on 12-9-1949, and that resolution considered the notice issued by the manager on the 7th/9th July 1948 and resolved to adopt and ratify the said notice in the manner, mode and time of recovering the said unpaid balance of Rs. 40/- on each B Class share.Therefore, this was the first time, on 12-9-1949, that the directors in their wisdom considered the notice which had been issued as far back as the 7th/9th July 1948. It will be noticed that what has been ratified is the notice and the manner, mode and time of recovering the unpaid balance of Rs. 40/-. The resolution does not even purport to ratify the resolution making the call on 3-3-1948 and the subsequent resolution of 22-6-1948.It is difficult to understand how, if the resolution making the call was invalid, it could be subsequently rendered valid by anything that the directors might do on 12-9-1949. The basis of the call and the basis of the liability of the defendant is the two resolutions of the 3rd March and 22-6-1948. If those resolutions are invalid, they cannot be rendered valid by the resolution of 12-9-1949.This is not a case where a valid resolution has been passed by some one lacking the necessary authority. In that case the persons with the requisite authority may adopt the resolution validly passed and thereby ratify it. But where the objection to the resolution is not the wanting of authority i but illegality in the very making of it, in the very passing of it, then it is impossible to accept Mr. Engineers contention that the doctrine of ratification can validate a resolution which when it was passed was invalid.
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0[ds]it is difficult to understand how the fixing of the time for the payment of the call is not an essential feature of the making of the call.A call imposes a liability upon a shareholder and that liability only commences from the time when he becomes liable to pay the call, and therefore authorising the call and fixing the amount of the call by themselves do not fix the liability upon theit is not necessary to fix the person to whom and the place at which payment is to be made by a resolution, it is equally not necessary to fix the time of payment. The fallacy underlying this argument is that although the second part of Art. 18 mentions all these factors, it does not, as already pointed out, indicate how these factors should be appointed by the directors.It may be by a resolution or it may not be, the second part of Art. 18 is silent. Therefore, if any of these factors are essential for the making of a call, then by reason of Art. 19 that factor must form part of a valid resolution making the call.Therefore, there is not much substance in the contention that no distinction can be made as between person and place on the one hand and time on the other, A distinction has to be made because these three factors do not stand on the same footing.Whereas the person to whom the payment is to be made and the place at which the payment is to be made are trifling requirements of no substance and of no consequence, the time at which the payment is to be made is of considerable substance and of great consequence to the shareholder.We might also look at the provision with regard to the call being made payable by instalments. This provision appears at the end of Art. 18 after Art. 18 has dealt with the authority of directors to make the call and the conditions imposing the liability upon the shareholder, and in our opinion this provision relates to the making of the call and therefore it must form part of the resolution authorising the call.This again is a matter of substance. Whether a call should be paid in one sum or by instalments goes to the question of the liability of the shareholder, and therefore this provision is as much of substance as the provision with regard to the fixing of time for the payment of the call.Therefore, the provision that a call should be made payable by instalments by reason of Art. 18 can only be made by resolution properly passed by theis clear that the resolutions on which the plaintiff company relies are not valid resolutions making a call. The first resolution ofmerely mentions the amount, and the period of the notice. The second resolution gives the interesting information that the directors are divided in their view and resolves that" the draft notice be finalised in consultation with the companys solicitors. Therefore, in our opinion apart from any other consideration the two resolutions, even taken together and read together and accepting the view of Mr. Engineer that these two resolutions make a valid call, in our opinion as neither of these two resolutions specifies the time for making the payment they fail to make a valid call as required by law.We are also in agreement with Mr. Desai that these resolutions suffer from another infirmity, and that is that they do not decide that the amount of the call should be paid by instalments. We have already indicated our opinion on a construction of Arts. 18 and 19 that the payment of call by instalment is as essential a feature of a resolution making a call as fixing of time for payment and on the evidence of Mr. Samant it is clear that the directors had not made up their minds nor did they know their minds as to whether the call should be paid in one sum or by instalments. Therefore, the directors never resolved that this call should be paid by instalments.Engineer advanced the proposition which seems to us rather startling that there is nothing in law to prevent the directors from delegating to a manager the power to make a call and according to him the directors could leave it to the manager to decide whether a call should be made at all, when it should be made and what the amount of the call should be.When one remembers that the power to make a call is in the nature of a trust and it is to be exercised in the interests of the company, it is rather difficult to accept the proposition that such an important power which is vested in the directors could be delegated by them to any one and could be exercised by anyArt. 125(3) also, which deals with setting up of a local management outside the place where the head office is situated, the power is given to the directors to delegate to any person appointed as a local manager any of the powers, authorities and discretions for the time being vested in the directors. But when we turn to Art. 130 obviously the intention was to confer upon the directors the right of delegation which was much narrower in its extent than the one referred to in Art. 115 or Art.the normal canon of construction either of a statute or of articles of association is that when different expressions are used they are intended to connote something different, and the draftsman of these articles had Art. 115 and Art. 125(3) before him and having used words of the widest import when he comes to Art. 130 he uses an expression of a narrower application; clearly the intention must be not to refer to every authority and every discretion exercisable by the directors under the articles.It would indeed be a serious view to take that under Art. 130 the directors could leave it to the manager to exercise the discretion or exercise the authority which the articles require they should exercise, and nothing is more patent than this that the contract between the company and the shareholders which is embodied in the articles requires that the directors must exercise their discretion and decide whether a call should be made at all and the amount of the call and the time when the call should be made. We refuse to countenance the contention that such a power could be delegated by the directors to the manager or to any one else. But really in a sense this argument is academic.We only noticed it because it was strenuously urged before us, because as we have already pointed out, even Mr. Engineer concedes that even though there may be a power of delegation under Art. 130 of the widest character when we look at Art. 18 and read it with Art. 19, a call can only be made by a resolution of the directors, and there fore as far as the making of the call is concerned that is a power or a discretion or an authority I which cannot be delegated to the manager or to any onethe resolution ofis very difficult to understand. One thing is clear that the directors could not make up their minds as to whether the call should be paid in one sum or by instalments and the time of the payment of instalments.In view of this position, we fail to understand how it could be seriously urged that by this resolution the directors fixed the time when the payment of the call should bewill accept the evidence of Mr. Samantthere is no reason why we should not, but even accepting that evidence it is impossible to take the view that the board of directors onaccepted the basis of that notice and concurred with the view of the manager which seemed to have been given expression to in the draft notice that the call should be made by instalments and the time when the instalments should be paid.If that had been the position, there was no reason whythe resolution ofshould have proclaimed to the world the disagreement among the directors, nor was it necessary to resolve that the draft notice should be finalised in consultation with the companys solicitors. If the basis of the draft notice was accepted, nothing was simpler than to pass a resolution approving of the draft. But that was not done precisely because the draft was not approved.13. There is further confusion caused by this resolution because it does not state who is to finalise the notice. Mr. Samant does suggest that he was given to understand that he had to go to the solicitors and get the notice finalised. But the expression "finalised" can only refer to the form and not to the substance. This part of the resolution does not seem to have left it to the manager to decide the substance of the notice or to resolve the conflict which was present among the directors as to whether the call should be paid in one amount or by instalments.Therefore, if only the finalising in the sense of settling the proper form was left to the manager, then it is clear that the resolution expected the notice to come back to the directors for their imprimatur. The most curious feature of this case is that at no time did the directors ever express their approval to the substance contained in the notice, substance of the most vital importance, substance with regard to the payment of the call by instalments, substance with regard to the time at which Chose instalments were to be paid. Nor does this resolution clearly authorise the manager to issue the notice after it wasagree with Mr. Engineer that when a notice issued by an officer of a company purports to have been issued by order of the board of directors, there is a presumption that it was issued pursuant to such an order, and unless the presumption is displaced the Court must act on that presumption. But what we are dealing with here is the resolution which is before us and which speaks for itself.We are not concerned with any authority that the directors might have given to the manager independently of this resolution. It was therefore not a formal matter for the directors to decide that the notice should be issued. Having failed to agree on a substantial question, having directed the manager, assuming it was the manager, to finalise the notice in consultation with the Companys solicitors, it was essential that the board of directors, after the notice was finalised, should direct the manager to issue the notice.Therefore, in this case this is not a mere technicality but something which goes to the root of the matter because it shows clearly that the directors never applied their minds to the question of the call being payable by instalments or the time when the instalments should be paid.Therefore, in our opinion, on the terms of this resolution, even assuming it was open to the directors to delegate to the manager the fixing of the time and the decision with regard to instalments, there is no clear delegation established on the terms of this resolution. If the power of delegation is to be exercises, it must be clearly exercised. If the directors do not wish to do what the articles require them to do and leave the doing of it to some one else, they must clearly resolve to that effect.We see nothing inthe resolution ofto indicate that the directors, assuming they had the power of delegation, delegated to the manager not only the finalising of the notice in the sense of seeing that it was in proper form, but the substance of the matter that he was to decide whether the call was payable by instalments and the time when the instalments were to be paid.Therefore, the notice issued by the manager was without authority. Therefore, even on this narrow ground apart from the more important ground that we have considered, there was no authority in the manager, no authority given to him by the directors, to Issue a notice calling upon the share holders to pay the call by instalments and the time when those instalments should be paid.Desai has rightly drawn our attention to the articles, which require calls payable by instalments to be paid at the due date of every instalment and he has also pointed out that not only is there a liability upon the shareholder to pay the instalment on the due date, but the consequence of not paying the instalment on the due date is the liability to have his shares forfeited.Therefore, whatever the decisions on which Mr. Engineer relies lay downand those decisions would only be true with reference to the particular articles thereon the articles that we have before us it is clear that there is a liability upon the shareholder to pay the first instalment on the due date and that liability could have been enforced by the companyand therefore Mr. Desai is right that one months notice was not given to pay the first instalment and to that extent the notice failed to carry out the mandate given bythe resolution ofare two answers given by Mr. Engineer to this contention. One is that even assuming the notice with regard to the first instalment is insufficient, there is no answer with regard to the notice to the second, third and fourth instalments which are all made payable more than one month after the notice, and Mr. Engineer also relied on certain English cases for the purpose of contending that a notice which is irregular does not invalidate the call.We should have thought on first principle that a requirement with regard to a notice being a concession given to the shareholder by the articles, that concession may be waived, but if it is not waived the requirement of the notice must be strictly complied with, and as no plea has been made here of a waiver of the notice by the shareholder, it is difficult to understand how if the notice is bad the Court could uphold the claim for the call. But in our opinion, it is unnecessary to decide the rather interesting question raised by counsel at the Bar.16. Some faint suggestion was also made by Mr. Engineer that the doctrine of ratification would come into play in this case and the doctrine of ratification is relied upon by reason of a resolution to which we have not yet referred, which was passed by the board of directors onand that resolution considered the notice issued by the manager on the 7th/9th July 1948 and resolved to adopt and ratify the said notice in the manner, mode and time of recovering the said unpaid balance of Rs. 40/on each B Class share.Therefore, this was the first time, onthat the directors in their wisdom considered the notice which had been issued as far back as the 7th/9th July 1948. It will be noticed that what has been ratified is the notice and the manner, mode and time of recovering the unpaid balance of Rs.The resolution does not even purport to ratify the resolution making the call onand the subsequent resolution ofis difficult to understand how, if the resolution making the call was invalid, it could be subsequently rendered valid by anything that the directors might do onThe basis of the call and the basis of the liability of the defendant is the two resolutions of the 3rd March andIf those resolutions are invalid, they cannot be rendered valid bythe resolution ofis not a case where a valid resolution has been passed by some one lacking the necessary authority. In that case the persons with the requisite authority may adopt the resolution validly passed and thereby ratify it. But where the objection to the resolution is not the wanting of authority i but illegality in the very making of it, in the very passing of it, then it is impossible to accept Mr. Engineers contention that the doctrine of ratification can validate a resolution which when it was passed was invalid.
| 0 | 8,667 | 2,868 |
### 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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directors do not wish to do what the articles require them to do and leave the doing of it to some one else, they must clearly resolve to that effect.We see nothing in the resolution of 22-6-1948 to indicate that the directors, assuming they had the power of delegation, delegated to the manager not only the finalising of the notice in the sense of seeing that it was in proper form, but the substance of the matter that he was to decide whether the call was payable by instalments and the time when the instalments were to be paid.Therefore, the notice issued by the manager was without authority. Therefore, even on this narrow ground apart from the more important ground that we have considered, there was no authority in the manager, no authority given to him by the directors, to Issue a notice calling upon the share holders to pay the call by instalments and the time when those instalments should be paid.15. Another point has been urged by Mr. Desai to which a passing reference might be made. The original resolution of 3-3-1948 as already pointed out required that a notice of one month should be given to all the B class shareholders to pay the call, and Mr. Desai points out that when in fact the notice came to be given on the 7th/9th July 1948 the shareholder was called upon to pay the first instalment on 5-8-1948 which gave him less than one months notice.It was attempted to be argued by Mr. Engineer that in law the shareholder could only be proceeded against when he had failed to pay the last instalment and no liability would arise till the date fixed for the payment of the last instalment, and on that basis it was sought to be argued that the notice of the 7th/9th July really required the payment in law on 5-11-1948 and not 5-8-1948, and therefore the notice was a proper notice.Mr. Desai has rightly drawn our attention to the articles, which require calls payable by instalments to be paid at the due date of every instalment and he has also pointed out that not only is there a liability upon the shareholder to pay the instalment on the due date, but the consequence of not paying the instalment on the due date is the liability to have his shares forfeited.Therefore, whatever the decisions on which Mr. Engineer relies lay down - and those decisions would only be true with reference to the particular articles there -on the articles that we have before us it is clear that there is a liability upon the shareholder to pay the first instalment on the due date and that liability could have been enforced by the companyand therefore Mr. Desai is right that one months notice was not given to pay the first instalment and to that extent the notice failed to carry out the mandate given by the resolution of 3-3-1948.There are two answers given by Mr. Engineer to this contention. One is that even assuming the notice with regard to the first instalment is insufficient, there is no answer with regard to the notice to the second, third and fourth instalments which are all made payable more than one month after the notice, and Mr. Engineer also relied on certain English cases for the purpose of contending that a notice which is irregular does not invalidate the call.We should have thought on first principle that a requirement with regard to a notice being a concession given to the shareholder by the articles, that concession may be waived, but if it is not waived the requirement of the notice must be strictly complied with, and as no plea has been made here of a waiver of the notice by the shareholder, it is difficult to understand how if the notice is bad the Court could uphold the claim for the call. But in our opinion, it is unnecessary to decide the rather interesting question raised by counsel at the Bar.16. Some faint suggestion was also made by Mr. Engineer that the doctrine of ratification would come into play in this case and the doctrine of ratification is relied upon by reason of a resolution to which we have not yet referred, which was passed by the board of directors on 12-9-1949, and that resolution considered the notice issued by the manager on the 7th/9th July 1948 and resolved to adopt and ratify the said notice in the manner, mode and time of recovering the said unpaid balance of Rs. 40/- on each B Class share.Therefore, this was the first time, on 12-9-1949, that the directors in their wisdom considered the notice which had been issued as far back as the 7th/9th July 1948. It will be noticed that what has been ratified is the notice and the manner, mode and time of recovering the unpaid balance of Rs. 40/-. The resolution does not even purport to ratify the resolution making the call on 3-3-1948 and the subsequent resolution of 22-6-1948.It is difficult to understand how, if the resolution making the call was invalid, it could be subsequently rendered valid by anything that the directors might do on 12-9-1949. The basis of the call and the basis of the liability of the defendant is the two resolutions of the 3rd March and 22-6-1948. If those resolutions are invalid, they cannot be rendered valid by the resolution of 12-9-1949.This is not a case where a valid resolution has been passed by some one lacking the necessary authority. In that case the persons with the requisite authority may adopt the resolution validly passed and thereby ratify it. But where the objection to the resolution is not the wanting of authority i but illegality in the very making of it, in the very passing of it, then it is impossible to accept Mr. Engineers contention that the doctrine of ratification can validate a resolution which when it was passed was invalid.
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### Explanation:
any authority that the directors might have given to the manager independently of this resolution. It was therefore not a formal matter for the directors to decide that the notice should be issued. Having failed to agree on a substantial question, having directed the manager, assuming it was the manager, to finalise the notice in consultation with the Companys solicitors, it was essential that the board of directors, after the notice was finalised, should direct the manager to issue the notice.Therefore, in this case this is not a mere technicality but something which goes to the root of the matter because it shows clearly that the directors never applied their minds to the question of the call being payable by instalments or the time when the instalments should be paid.Therefore, in our opinion, on the terms of this resolution, even assuming it was open to the directors to delegate to the manager the fixing of the time and the decision with regard to instalments, there is no clear delegation established on the terms of this resolution. If the power of delegation is to be exercises, it must be clearly exercised. If the directors do not wish to do what the articles require them to do and leave the doing of it to some one else, they must clearly resolve to that effect.We see nothing inthe resolution ofto indicate that the directors, assuming they had the power of delegation, delegated to the manager not only the finalising of the notice in the sense of seeing that it was in proper form, but the substance of the matter that he was to decide whether the call was payable by instalments and the time when the instalments were to be paid.Therefore, the notice issued by the manager was without authority. Therefore, even on this narrow ground apart from the more important ground that we have considered, there was no authority in the manager, no authority given to him by the directors, to Issue a notice calling upon the share holders to pay the call by instalments and the time when those instalments should be paid.Desai has rightly drawn our attention to the articles, which require calls payable by instalments to be paid at the due date of every instalment and he has also pointed out that not only is there a liability upon the shareholder to pay the instalment on the due date, but the consequence of not paying the instalment on the due date is the liability to have his shares forfeited.Therefore, whatever the decisions on which Mr. Engineer relies lay downand those decisions would only be true with reference to the particular articles thereon the articles that we have before us it is clear that there is a liability upon the shareholder to pay the first instalment on the due date and that liability could have been enforced by the companyand therefore Mr. Desai is right that one months notice was not given to pay the first instalment and to that extent the notice failed to carry out the mandate given bythe resolution ofare two answers given by Mr. Engineer to this contention. One is that even assuming the notice with regard to the first instalment is insufficient, there is no answer with regard to the notice to the second, third and fourth instalments which are all made payable more than one month after the notice, and Mr. Engineer also relied on certain English cases for the purpose of contending that a notice which is irregular does not invalidate the call.We should have thought on first principle that a requirement with regard to a notice being a concession given to the shareholder by the articles, that concession may be waived, but if it is not waived the requirement of the notice must be strictly complied with, and as no plea has been made here of a waiver of the notice by the shareholder, it is difficult to understand how if the notice is bad the Court could uphold the claim for the call. But in our opinion, it is unnecessary to decide the rather interesting question raised by counsel at the Bar.16. Some faint suggestion was also made by Mr. Engineer that the doctrine of ratification would come into play in this case and the doctrine of ratification is relied upon by reason of a resolution to which we have not yet referred, which was passed by the board of directors onand that resolution considered the notice issued by the manager on the 7th/9th July 1948 and resolved to adopt and ratify the said notice in the manner, mode and time of recovering the said unpaid balance of Rs. 40/on each B Class share.Therefore, this was the first time, onthat the directors in their wisdom considered the notice which had been issued as far back as the 7th/9th July 1948. It will be noticed that what has been ratified is the notice and the manner, mode and time of recovering the unpaid balance of Rs.The resolution does not even purport to ratify the resolution making the call onand the subsequent resolution ofis difficult to understand how, if the resolution making the call was invalid, it could be subsequently rendered valid by anything that the directors might do onThe basis of the call and the basis of the liability of the defendant is the two resolutions of the 3rd March andIf those resolutions are invalid, they cannot be rendered valid bythe resolution ofis not a case where a valid resolution has been passed by some one lacking the necessary authority. In that case the persons with the requisite authority may adopt the resolution validly passed and thereby ratify it. But where the objection to the resolution is not the wanting of authority i but illegality in the very making of it, in the very passing of it, then it is impossible to accept Mr. Engineers contention that the doctrine of ratification can validate a resolution which when it was passed was invalid.
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Shree Shyam Agency Vs. Union Of India
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“self”,Such person shall, deposit an amount equivalent to the cost of consignment by way of security apart from freight and other charges before taking delivery of such consignment.(2) If any amount has been deposited by way of security under clause (b) of sub-rule (1), such amount shall be refunded by the railway administration on production of the original railway receipt within six months from the date of taking such delivery.(3) In the absence of original railway receipt refund may be granted on execution of an Indemnity Note in Form I or I-A and I-B, as the case may be, provided the invoice copy of the railway receipt is available and the particulars of consignment can be connected with reference to the invoice copy, within six months from the date of taking delivery.” 16. Form I under Rule 3(1) of the 1990 Rules deals with the “Indemnity Note” that when the consignment is to be delivered to the ‘person’, not to ‘self’. If it is to a ‘person’ then he has to furnish an indemnity note signed by the ‘consignee’. Sub-rule (2) of Rule 3 specifically states that, when the railway receipt is not forthcoming and the consignment is addressed to “Self”, delivery shall not be made unless Indemnity Note, duly executed in Forms I-A and I-B are produced by the persons claiming delivery of the consignment. The relevant portion of Form I-A and I-B are extracted below for easy reference: “Form I-A [See Rule 3(2)] FORM OF INDEMNITY NOTE _______ RAILWAY INDEMNITY NOTE ** I/We hereby acknowledge to have received from _________ Railway ______ valued at Rs.___________ which was dispatched by ** me/us and booked to self/as value payable, from the _______ Station of the ________ Railway on or about the ________ day of _____ the railway receipt for which has been ______________ and ** for myself, my heirs, executors and administrators / and for our Company / Firm, their assigns, and successors. ** I/We undertake in consideration of such delivery as aforesaid to hold. * President of India, his agents and servants the ____________ railway administration, its agents and servants harmless and indemnified in respect of all claims to the said goods. ** I/We also undertake to pay on demand to the railway administration freight charges, undercharges, wharfage and any other charges that may be subsequently found due in respect of this transaction. And ** I/We the undersigned, signing below the consignor of these goods certify that the first signor is the bona fide owner of the goods; and that ** I/We undertaken the whole of the said liability equally with the consignor, and for this purpose ** I/We affix ** my/our signature hereto. Signature of Witness _______ Signature of Consignor______ Father’s name ____________ **Father’s name __________ Age ____________________ Age _____________________ Profession _______________ Profession ________________ Residence _______________ Residence ________________ _______________________________ Designation and Seal of the Co./Form _____________________________ Registered Office/Place of business” Signature of witness___________ Signature of Surety__________ Father’s name________________ **Father’s name____________ Age________________________ Age______________________ Profession___________________ Profession_________________” “Form I-B [See Rule 3(2)] FORM OF INDEMNITY NOTE _______ RAILWAY INDEMNITY NOTE ** I/We hereby acknowledge to have received from _________ Railway ______ valued at Rs.___________ which was dispatched by ________ from _____ Station of the ________ Railway on or about the ________ day of _____ and booked to self/as value payable, the railway receipt for which has been ______________ and ** for myself, my heirs, executors and administrators / and for our Company / Firm, their assigns, and successors. ** I/We undertake in consideration of such delivery as aforesaid to hold. * President of India, his agents and servants the ____________ Railway Administration, its agents and servants harmless and indemnified in respect of all claims to the said goods. ** I/We also undertake to pay on demand to the railway Administration freight charges, wharfage and any other charges that may be subsequently found due in respect of this transaction. ** I enclose a copy of a stamp Indemnity Note executed by the consignor and countersigned by the Station Master of the Forwarding Station which has been duly endorsed by the Consignor in my favour authorizing me to take delivery of the consignments on his behalf. And ** I/We the undersigned, signing below the person authorized by the consignor to take delivery of the goods. I hereby certify that the first signor is the bona fide owner of the goods and ** I/We undertake the whole of the said liability equally with the signor, and for this purpose **I/We affix ** my/our signature hereby. Signature of Witness _______ Signature of Consignor______ Father’s name ____________ Father’s name __________ Age ____________________ Age _____________________ Profession _______________ Profession ________________ Residence _______________ Residence ________________ _______________________________ Designation and Seal of the Co./Form _____________________________ Registered Office/Place of business” Signature of witness___________ Signature of Surety__________ Father’s name________________ **Father’s name____________ Age________________________ Age______________________ Profession___________________ Profession_________________” 17. In Form 1-A, Indemnity Note, the consignor has to sign certifying that his is the bona fide owner of goods. Form 1-B, Indemnity Note, has to be signed by the consignor authorizing the person to take delivery. The copy of a stamped Indemnity Note has to be executed by the consignor and counter signed by the Station Master of the forwarding station. In other words, all the formalities prescribed under Form 1-A and Form 1-B have to be complied with, when the Railway Receipt is not forthcoming and the consignment is addressed by the sender to Self. The Railways cannot effect delivery unless those formalities have been complied with. 18. On going through the Railways Act, 1989, the Tribunal Act as well as the 1990 Rules and the statutory forms, we are of the considered view that what the Tribunal has to inquire into and determine is the claim against the Railway Administration, that is whether the Railway Administration is at fault in discharging its responsibilities under the Railways Act, Rules and Regulations and not the inter se disputes between the claimants and third parties.19. In view of the above facts and circumstances of the case, we
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0[ds]18. On going through the Railways Act, 1989, the Tribunal Act as well as the 1990 Rules and the statutory forms, we are of the considered view that what the Tribunal has to inquire into and determine is the claim against the Railway Administration, that is whether the Railway Administration is at fault in discharging its responsibilities under the Railways Act, Rules and Regulations and not the inter se disputes between the claimants and third parties.
| 0 | 4,716 | 87 |
### 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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“self”,Such person shall, deposit an amount equivalent to the cost of consignment by way of security apart from freight and other charges before taking delivery of such consignment.(2) If any amount has been deposited by way of security under clause (b) of sub-rule (1), such amount shall be refunded by the railway administration on production of the original railway receipt within six months from the date of taking such delivery.(3) In the absence of original railway receipt refund may be granted on execution of an Indemnity Note in Form I or I-A and I-B, as the case may be, provided the invoice copy of the railway receipt is available and the particulars of consignment can be connected with reference to the invoice copy, within six months from the date of taking delivery.” 16. Form I under Rule 3(1) of the 1990 Rules deals with the “Indemnity Note” that when the consignment is to be delivered to the ‘person’, not to ‘self’. If it is to a ‘person’ then he has to furnish an indemnity note signed by the ‘consignee’. Sub-rule (2) of Rule 3 specifically states that, when the railway receipt is not forthcoming and the consignment is addressed to “Self”, delivery shall not be made unless Indemnity Note, duly executed in Forms I-A and I-B are produced by the persons claiming delivery of the consignment. The relevant portion of Form I-A and I-B are extracted below for easy reference: “Form I-A [See Rule 3(2)] FORM OF INDEMNITY NOTE _______ RAILWAY INDEMNITY NOTE ** I/We hereby acknowledge to have received from _________ Railway ______ valued at Rs.___________ which was dispatched by ** me/us and booked to self/as value payable, from the _______ Station of the ________ Railway on or about the ________ day of _____ the railway receipt for which has been ______________ and ** for myself, my heirs, executors and administrators / and for our Company / Firm, their assigns, and successors. ** I/We undertake in consideration of such delivery as aforesaid to hold. * President of India, his agents and servants the ____________ railway administration, its agents and servants harmless and indemnified in respect of all claims to the said goods. ** I/We also undertake to pay on demand to the railway administration freight charges, undercharges, wharfage and any other charges that may be subsequently found due in respect of this transaction. And ** I/We the undersigned, signing below the consignor of these goods certify that the first signor is the bona fide owner of the goods; and that ** I/We undertaken the whole of the said liability equally with the consignor, and for this purpose ** I/We affix ** my/our signature hereto. Signature of Witness _______ Signature of Consignor______ Father’s name ____________ **Father’s name __________ Age ____________________ Age _____________________ Profession _______________ Profession ________________ Residence _______________ Residence ________________ _______________________________ Designation and Seal of the Co./Form _____________________________ Registered Office/Place of business” Signature of witness___________ Signature of Surety__________ Father’s name________________ **Father’s name____________ Age________________________ Age______________________ Profession___________________ Profession_________________” “Form I-B [See Rule 3(2)] FORM OF INDEMNITY NOTE _______ RAILWAY INDEMNITY NOTE ** I/We hereby acknowledge to have received from _________ Railway ______ valued at Rs.___________ which was dispatched by ________ from _____ Station of the ________ Railway on or about the ________ day of _____ and booked to self/as value payable, the railway receipt for which has been ______________ and ** for myself, my heirs, executors and administrators / and for our Company / Firm, their assigns, and successors. ** I/We undertake in consideration of such delivery as aforesaid to hold. * President of India, his agents and servants the ____________ Railway Administration, its agents and servants harmless and indemnified in respect of all claims to the said goods. ** I/We also undertake to pay on demand to the railway Administration freight charges, wharfage and any other charges that may be subsequently found due in respect of this transaction. ** I enclose a copy of a stamp Indemnity Note executed by the consignor and countersigned by the Station Master of the Forwarding Station which has been duly endorsed by the Consignor in my favour authorizing me to take delivery of the consignments on his behalf. And ** I/We the undersigned, signing below the person authorized by the consignor to take delivery of the goods. I hereby certify that the first signor is the bona fide owner of the goods and ** I/We undertake the whole of the said liability equally with the signor, and for this purpose **I/We affix ** my/our signature hereby. Signature of Witness _______ Signature of Consignor______ Father’s name ____________ Father’s name __________ Age ____________________ Age _____________________ Profession _______________ Profession ________________ Residence _______________ Residence ________________ _______________________________ Designation and Seal of the Co./Form _____________________________ Registered Office/Place of business” Signature of witness___________ Signature of Surety__________ Father’s name________________ **Father’s name____________ Age________________________ Age______________________ Profession___________________ Profession_________________” 17. In Form 1-A, Indemnity Note, the consignor has to sign certifying that his is the bona fide owner of goods. Form 1-B, Indemnity Note, has to be signed by the consignor authorizing the person to take delivery. The copy of a stamped Indemnity Note has to be executed by the consignor and counter signed by the Station Master of the forwarding station. In other words, all the formalities prescribed under Form 1-A and Form 1-B have to be complied with, when the Railway Receipt is not forthcoming and the consignment is addressed by the sender to Self. The Railways cannot effect delivery unless those formalities have been complied with. 18. On going through the Railways Act, 1989, the Tribunal Act as well as the 1990 Rules and the statutory forms, we are of the considered view that what the Tribunal has to inquire into and determine is the claim against the Railway Administration, that is whether the Railway Administration is at fault in discharging its responsibilities under the Railways Act, Rules and Regulations and not the inter se disputes between the claimants and third parties.19. In view of the above facts and circumstances of the case, we
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18. On going through the Railways Act, 1989, the Tribunal Act as well as the 1990 Rules and the statutory forms, we are of the considered view that what the Tribunal has to inquire into and determine is the claim against the Railway Administration, that is whether the Railway Administration is at fault in discharging its responsibilities under the Railways Act, Rules and Regulations and not the inter se disputes between the claimants and third parties.
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D.R. Krishnaswamy Vs. Wesleyan Methodist Mission Trust Association and Others
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anything in the plaint of that suit about the will suggested that the will was not in existence on the day the suit was instituted. According to the trial Court all that could be inferred from this circumstance was that the plaintiff was an unscrupulous man but having regard to the other circumstances it would not justify a finding that the will was fabricated. 7. The trial Court further noted that the two attesting witnesses were respectable men who remained unshaken in the face of gruelling cross-examination and that they were "not persons who can be expected to join hands with the plaintiff in cooking up the will". The trial Court also pointed out that Sripadas widow and children who were impleaded as defendants in the suit did not appear to challenge the genuineness of the will. This, according to the trial Court, meant that they impliedly admitted execution of the will by Sripada Rao. 8. The High Court found that the will was not genuine. The very appearance of the document seemed suspicious to the learned Judges. This is what the High Court says on this aspect : The size of the letters and the spacing between the lines in the two pages of the document vary; on the first page the size of the letters is small and the spacing between the lines is uniform; on the second page, the letters are bigger and the spacing between the lines is large. About an inch of space is left between the schedule of the property bequeathed and the concluding part of the body of the will. The document has been written on two sheets of paper in a manner which discloses a deliberate attempt made to adjust the writing to the alleged signature of Sripada Rao. 9. We have examined the documents for ourselves. To us it did not seem that there was an attempt to adjust the writing to Sripadas signatures which appeared on both sheets of paper. The genuineness of the signatures has not been questioned; what is alleged is that the plaintiff somehow got hold of two blank sheets of paper signed by Sripada who was in will was fabricated. The trial Court had found that Sripada who was in full possession of his faculties was not the sort of man who would leave blank papers bearing his signature lying about making it easy for anyone to put them to some use not intended by Sripada. The High Court does not appear to have considered this aspect. 10. Another circumstance on which the High Court finds that the will was not genuine is the incorrect statement made in the will that Sripada had left his residential house for his wife and unmarried daughter. This certainly was a false statement, but the High Court does not take note of the reasons which prompted the trial Court not to take the incorrect recitals in the will as proof of the will not being genuine. In our opinion, the view taken by the trial Court was reasonable and we are inclined to agree with it. The other important factor that weighed with the High Court related to the promissory note executed by Sripada Rao in favour of the appellant. According to the High Court the suit that the plaintiff instituted against Sripada Raos heirs on the basis of this promissory note can be explained only on the hypothesis that the will was not in existence on March 23, 1960, when that suit was filed. The High Court observes that if the plaintiff had "accepted the legacy which was in satisfaction of his debt, he could not have sued for the debt. It is not the plaintiffs case that he had made the election not to accept the legacy". According to the trial Court, the fact that the plaintiff "instituted the suit suppressing the will may be an indication that plaintiff may be quite scrupulous" but would not "justify a finding that the will was faked". Having considered the facts of the case we agree with the view taken by the trial Court. The High Court was also in "considerable doubt about the alleged borrowings by Sripada Rao from the plaintiff" and held that "if the debt is false, the reasonable inference is that the will is not true". No one has questioned the genuineness of the promissory note executed by Sripada Rao which proves that the plaintiff did lend money to him. Sripada Raos widow and sons filed written statements in the suit brought by the plaintiff upon the promissory note, but did not ultimately contest and the suit was decreed ex parte. The High Court observes that they did not "put up a serious contest". There may have been various reasons why the defendants in that suit failed to contest and we do not see how this fact can be taken as a circumstance against the plaintiff in the present suit; it can hardly be suggested that is was a collusive affair between the plaintiff and Sripadas heirs. 11. The High Court does not refer to the finding recorded by the trial Court that the two attesting witnesses PWs 2 and 3 were respectable persons and that it was difficult to associate them with fabrication of the will. 12. The heirs and legal representatives of Sripada Rao who were impleaded in these appeals as respondents have applied before us for transposing them a appellants. This again is an indication that they do not consider the will as fabricated. However, in view of the order we propose to make in this appeal no order is necessary on this application. 13. It appears to us that the High Court in holding that the will was fabricated did not advert to all the various aspects of the matter considered by the trial Court. The view taken by the trial Court seems to us to be reasonable and we do not find any valid ground why it should not be accepted. 14.
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1[ds]9. We have examined the documents for ourselves. To us it did not seem that there was an attempt to adjust the writing to Sripadas signatures which appeared on both sheets of paper. The genuineness of the signatures has not been questioned; what is alleged is that the plaintiff somehow got hold of two blank sheets of paper signed by Sripada who was in will was fabricated. The trial Court had found that Sripada who was in full possession of his faculties was not the sort of man who would leave blank papers bearing his signature lying about making it easy for anyone to put them to some use not intended by Sripada. The High Court does not appear to have considered this aspect10. Another circumstance on which the High Court finds that the will was not genuine is the incorrect statement made in the will that Sripada had left his residential house for his wife and unmarried daughter. This certainly was a false statement, but the High Court does not take note of the reasons which prompted the trial Court not to take the incorrect recitals in the will as proof of the will not being genuine. In our opinion, the view taken by the trial Court was reasonable and we are inclined to agree with it. The other important factor that weighed with the High Court related to the promissory note executed by Sripada Rao in favour of the appellant. According to the High Court the suit that the plaintiff instituted against Sripada Raos heirs on the basis of this promissory note can be explained only on the hypothesis that the will was not in existence on March 23, 1960, when that suit was filed. The High Court observes that if the plaintiff had "accepted the legacy which was in satisfaction of his debt, he could not have sued for the debt. It is not the plaintiffs case that he had made the election not to accept the legacy". According to the trial Court, the fact that the plaintiff "instituted the suit suppressing the will may be an indication that plaintiff may be quite scrupulous" but would not "justify a finding that the will was faked". Having considered the facts of the case we agree with the view taken by the trial Court. The High Court was also in "considerable doubt about the alleged borrowings by Sripada Rao from the plaintiff" and held that "if the debt is false, the reasonable inference is that the will is not true". No one has questioned the genuineness of the promissory note executed by Sripada Rao which proves that the plaintiff did lend money to him. Sripada Raos widow and sons filed written statements in the suit brought by the plaintiff upon the promissory note, but did not ultimately contest and the suit was decreed ex parte. The High Court observes that they did not "put up a serious contest". There may have been various reasons why the defendants in that suit failed to contest and we do not see how this fact can be taken as a circumstance against the plaintiff in the present suit; it can hardly be suggested that is was a collusive affair between the plaintiff and Sripadas heirs11. The High Court does not refer to the finding recorded by the trial Court that the two attesting witnesses PWs 2 and 3 were respectable persons and that it was difficult to associate them with fabrication of the will12. The heirs and legal representatives of Sripada Rao who were impleaded in these appeals as respondents have applied before us for transposing them a appellants. This again is an indication that they do not consider the will as fabricated. However, in view of the order we propose to make in this appeal no order is necessary on this application13. It appears to us that the High Court in holding that the will was fabricated did not advert to all the various aspects of the matter considered by the trial Court. The view taken by the trial Court seems to us to be reasonable and we do not find any valid ground why it should not be accepted.
| 1 | 2,990 | 751 |
### 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:
anything in the plaint of that suit about the will suggested that the will was not in existence on the day the suit was instituted. According to the trial Court all that could be inferred from this circumstance was that the plaintiff was an unscrupulous man but having regard to the other circumstances it would not justify a finding that the will was fabricated. 7. The trial Court further noted that the two attesting witnesses were respectable men who remained unshaken in the face of gruelling cross-examination and that they were "not persons who can be expected to join hands with the plaintiff in cooking up the will". The trial Court also pointed out that Sripadas widow and children who were impleaded as defendants in the suit did not appear to challenge the genuineness of the will. This, according to the trial Court, meant that they impliedly admitted execution of the will by Sripada Rao. 8. The High Court found that the will was not genuine. The very appearance of the document seemed suspicious to the learned Judges. This is what the High Court says on this aspect : The size of the letters and the spacing between the lines in the two pages of the document vary; on the first page the size of the letters is small and the spacing between the lines is uniform; on the second page, the letters are bigger and the spacing between the lines is large. About an inch of space is left between the schedule of the property bequeathed and the concluding part of the body of the will. The document has been written on two sheets of paper in a manner which discloses a deliberate attempt made to adjust the writing to the alleged signature of Sripada Rao. 9. We have examined the documents for ourselves. To us it did not seem that there was an attempt to adjust the writing to Sripadas signatures which appeared on both sheets of paper. The genuineness of the signatures has not been questioned; what is alleged is that the plaintiff somehow got hold of two blank sheets of paper signed by Sripada who was in will was fabricated. The trial Court had found that Sripada who was in full possession of his faculties was not the sort of man who would leave blank papers bearing his signature lying about making it easy for anyone to put them to some use not intended by Sripada. The High Court does not appear to have considered this aspect. 10. Another circumstance on which the High Court finds that the will was not genuine is the incorrect statement made in the will that Sripada had left his residential house for his wife and unmarried daughter. This certainly was a false statement, but the High Court does not take note of the reasons which prompted the trial Court not to take the incorrect recitals in the will as proof of the will not being genuine. In our opinion, the view taken by the trial Court was reasonable and we are inclined to agree with it. The other important factor that weighed with the High Court related to the promissory note executed by Sripada Rao in favour of the appellant. According to the High Court the suit that the plaintiff instituted against Sripada Raos heirs on the basis of this promissory note can be explained only on the hypothesis that the will was not in existence on March 23, 1960, when that suit was filed. The High Court observes that if the plaintiff had "accepted the legacy which was in satisfaction of his debt, he could not have sued for the debt. It is not the plaintiffs case that he had made the election not to accept the legacy". According to the trial Court, the fact that the plaintiff "instituted the suit suppressing the will may be an indication that plaintiff may be quite scrupulous" but would not "justify a finding that the will was faked". Having considered the facts of the case we agree with the view taken by the trial Court. The High Court was also in "considerable doubt about the alleged borrowings by Sripada Rao from the plaintiff" and held that "if the debt is false, the reasonable inference is that the will is not true". No one has questioned the genuineness of the promissory note executed by Sripada Rao which proves that the plaintiff did lend money to him. Sripada Raos widow and sons filed written statements in the suit brought by the plaintiff upon the promissory note, but did not ultimately contest and the suit was decreed ex parte. The High Court observes that they did not "put up a serious contest". There may have been various reasons why the defendants in that suit failed to contest and we do not see how this fact can be taken as a circumstance against the plaintiff in the present suit; it can hardly be suggested that is was a collusive affair between the plaintiff and Sripadas heirs. 11. The High Court does not refer to the finding recorded by the trial Court that the two attesting witnesses PWs 2 and 3 were respectable persons and that it was difficult to associate them with fabrication of the will. 12. The heirs and legal representatives of Sripada Rao who were impleaded in these appeals as respondents have applied before us for transposing them a appellants. This again is an indication that they do not consider the will as fabricated. However, in view of the order we propose to make in this appeal no order is necessary on this application. 13. It appears to us that the High Court in holding that the will was fabricated did not advert to all the various aspects of the matter considered by the trial Court. The view taken by the trial Court seems to us to be reasonable and we do not find any valid ground why it should not be accepted. 14.
### Response:
1
### Explanation:
9. We have examined the documents for ourselves. To us it did not seem that there was an attempt to adjust the writing to Sripadas signatures which appeared on both sheets of paper. The genuineness of the signatures has not been questioned; what is alleged is that the plaintiff somehow got hold of two blank sheets of paper signed by Sripada who was in will was fabricated. The trial Court had found that Sripada who was in full possession of his faculties was not the sort of man who would leave blank papers bearing his signature lying about making it easy for anyone to put them to some use not intended by Sripada. The High Court does not appear to have considered this aspect10. Another circumstance on which the High Court finds that the will was not genuine is the incorrect statement made in the will that Sripada had left his residential house for his wife and unmarried daughter. This certainly was a false statement, but the High Court does not take note of the reasons which prompted the trial Court not to take the incorrect recitals in the will as proof of the will not being genuine. In our opinion, the view taken by the trial Court was reasonable and we are inclined to agree with it. The other important factor that weighed with the High Court related to the promissory note executed by Sripada Rao in favour of the appellant. According to the High Court the suit that the plaintiff instituted against Sripada Raos heirs on the basis of this promissory note can be explained only on the hypothesis that the will was not in existence on March 23, 1960, when that suit was filed. The High Court observes that if the plaintiff had "accepted the legacy which was in satisfaction of his debt, he could not have sued for the debt. It is not the plaintiffs case that he had made the election not to accept the legacy". According to the trial Court, the fact that the plaintiff "instituted the suit suppressing the will may be an indication that plaintiff may be quite scrupulous" but would not "justify a finding that the will was faked". Having considered the facts of the case we agree with the view taken by the trial Court. The High Court was also in "considerable doubt about the alleged borrowings by Sripada Rao from the plaintiff" and held that "if the debt is false, the reasonable inference is that the will is not true". No one has questioned the genuineness of the promissory note executed by Sripada Rao which proves that the plaintiff did lend money to him. Sripada Raos widow and sons filed written statements in the suit brought by the plaintiff upon the promissory note, but did not ultimately contest and the suit was decreed ex parte. The High Court observes that they did not "put up a serious contest". There may have been various reasons why the defendants in that suit failed to contest and we do not see how this fact can be taken as a circumstance against the plaintiff in the present suit; it can hardly be suggested that is was a collusive affair between the plaintiff and Sripadas heirs11. The High Court does not refer to the finding recorded by the trial Court that the two attesting witnesses PWs 2 and 3 were respectable persons and that it was difficult to associate them with fabrication of the will12. The heirs and legal representatives of Sripada Rao who were impleaded in these appeals as respondents have applied before us for transposing them a appellants. This again is an indication that they do not consider the will as fabricated. However, in view of the order we propose to make in this appeal no order is necessary on this application13. It appears to us that the High Court in holding that the will was fabricated did not advert to all the various aspects of the matter considered by the trial Court. The view taken by the trial Court seems to us to be reasonable and we do not find any valid ground why it should not be accepted.
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Seth Thawardas Pherumal Vs. Union of India
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and concluded all their terms; then, at the last minute, one side raised a point about rationing but without waiting for a reply and without having the term entered in the contract, he signed the contract as it stood before the point was raised even during the negotiation.It is an error in law to hold that any contractual obligation can be inferred or implied from these circumstances.45. Then there is still another error. If this implied agreement about rations and cloth does not spring out of the written contract but is to be inferred collaterally as a distinct and subsidiary contract, and we gather that that is the finding, especially as, reference was made to section 9 of the Contract Act, then that is not a contract to which the arbitration clause can apply. Wide though it is, clause 14 is confined to any matter relating to the written contract and if ration and cloth are not covered by the written contract, they are not matters that relate to it.If parties choose to add a fresh contract in addition to or in substitution for the old, then the arbitration clause cannot cover the new contract.See Lord Macmillan in 1942 AC 356 at p.371 (H).46. The last item in dispute in this appeal is claim No. 17 about interest. The statement of claim sets out-"Item 17 - Interest on the amount of money involved in this claim at the rate of Rs. 6 per cent.-Rs. 27,665.This work was finished in May 1946 and it was proper for the department to have decided all our claims at least by 31st December 1947..................But this was not done. Due to this a heavy amount remained blocked up and we were compelled to take money from our bankers on interest. We therefore pray for interest for 16 months from 1-1-48 to 31-4-49".The arbitrator held :"The contractors contention that his claims should have been settled by January 1948 is, in my opinion, reasonable. I therefore award interest at 6 per cent. for 16 months on the total amount of the awards given i.e., Rs, 17,363."Then the arbitrator sets out the amounts awarded under each head of claim. A persual at them shows that each head relates to a claim for an unliquidated sum. The Interest Act, 1939 applies, as interest is not otherwise payable by law in this kind of case (see B. N. Ry. Co., v. Ruttanji Ramji, AIR 1938 PC 67 (J) but even if it be assumed that an arbitrator is a "Court" within the meaning of that Act (a fact that by no means appears to be the case),the following among other conditions must be fulfilled before interest can be awarded under the Act:(1) there must be a debt or a sum certain ;(2) it must be payable at a certain time or otherwise;(3) these debts or sums must be payable by virtue of some written contract at a certain time;(4) There must have been a demand in writing stating that interest will be demanded from the date of the demand.Not one of these elements is present, so the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable.47. It was suggested that at least interest from the date of "suit" could be awarded on the analogy of Section 34 of the Civil Procedure Code, 1908.But section 34 does not apply because an arbitrator is not a "court" within the meaning of the Code nor does the Code apply to arbitrators, and but for S. 34, even a Court would not have the power to give interest after the suit.This was, therefore, also rightly struck out from the award.48. We pause to note that there was only a delay of five days at the outside in the overall picture. The last date for removal of the last installment of bricks was 25-5-46 and the contractor says under this head that the whole contract was completed by the end of May, 1946.It is difficult to see how 88 lacs of bricks could have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the contractors case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time table. However, that was a matter within the jurisdiction of the arbitrator and is not a matter in which the Courts can interfere.49. That concludes Civil Appeal No. 260 of 1953 and we now turn to the other appeal, Civil Appeal No. 12 of 1954. Only two items are in dispute here. Heads 4 and 17 of the claim.50. The over-all pattern of the claim is the same as in the other case. There was a contractor and he entered into an agreement containing the some terms and conditions, except about the details of supply. It was signed on the same day as the other and by the same authority on behalf of the Dominion Government, and the matter went before the same arbitrator and the award in this case was given on 1-5-1949, one week before the other award. Here also, no specific question of law of was referred and we need not cover the same ground. Our decision is the same here as, there.51. The fourth head of claim of about cloth and rations. The claim here, and the Dominion Governments reply, is the same as in the other case, but the award in this case is not based on an implied contractual obligation but on "a moral and implied obligation". The error here is even greater then before. The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000.52. The seventeenth head of claim was about interest. The contractor claimed Rs.27,665 and the arbitrator awarded Rs. 9,954. There is the same error of law apparent on the face of the award.53.
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0[ds]An arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what be thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and. apply the law, and if he does not, he can be set right by the Courts provided his error appears on the face of the award. The single exception to this is when the parties choose specifically to refer a question of law as a separate and distinctis undeniable but it is not enough that the dispute should fall within the clause. It is also necessary that the parties should define what the dispute is and agree to refer the dispute so set out and defined to arbitration, or, if they do not, that the Court should compel them to dostress the word "specifically" because parties who make a reference to arbitration have the right to insist that the tribunal of their choice shall decide their dispute according to law, so before the right can be denied to them in any particular matter, the Court must be very sure that both sides wanted the decision of the arbitrator on a point of law rather than that of the Courts and that they wanted his decision on that point to be final.The dispute sprang out of a series of claims made in a number of letters written by the contractor to the Additional Chief Engineer, C. P. W. D. and culminated in a petition, Ex. B(1), in which the contractor summarised his claims. The document is not dated. On receipt of this, someone on behalf of the C. P. W. D. invoked the jurisdiction of the arbitrator. That letter has not been filed. The arbitrator then wrote to the contractor and asked him to submit a statement ofletter has not been filed either but reference is made to it in Ex. C (l), the statement of claim which the contractor filed in response to that letter. As the material documents setting out the terms of reference are not here, we were asked by both sides to infer what the terms were from this statement of claims and the recitals in the award.We are of opinion that this is not the kind of specific reference on a point of law that the law of arbitration requires. In the first place, what was shown to us is no reference at all. It is only an incidental matter introduced by the Dominion Government to repel the claim made by the contractor in general terms under claim No. 3. In the next place this was the submission of the contractorreference requires the assent of both sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred,then recourse must be had to the Court under Section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub-sectionthe absence of either, agreement by both sides about the norms of reference, or an order of the Court under Section 20(4) compelling a reference, the arbitrator is not vested with the necessary exclusivein our opinion, is clear from the passages we have quoted from the award.We hold that clause 6 expressly releves the union Government of all liability under this head of claim and that the arbitrator was wrong in awarding any sum on thatNow it is admitted that the contract contains no clause about rations and it is also evident that the question was not raised when the tender was accepted on behalf of the Dominion Government. The question was raised in a letter to the Executive Engineer, and the contractor signed the contract without waiting for ais well settled that governments can only be bound by contracts that are entered into in a particular way and which are signed by the proper authority.A reference to the agreement, Ex. A(1), will show that it was accepted on behalf of the Dominion Government by the Additional Chief Engineer and not by an Executiveletter written to the Executive Engineer would therefore have no effect and even if it be assumed that the letter was forwarded to the Additional Chief Engineer for consideration, what does it amount to? A tender embodying certain terms is submitted and is accepted on 1-11-45. Both sides are agreed on all matters contained in it and their conduct shows that both sides indicated that the contract should be reduced to writing. Before the agreement is signed, one party wants to include a further condition in the contract.We will assume that the request was made to the other contracting party. But without waiting for the assent of the other side, both sides accept and sign the contractit existed before the fresh suggestion wasIt is an error in law to deduce from this that there was acceptance of the fresh proposal. On the contrary, the legal conclusion is that the new suggestion was dropped and that the contractor was content to accept the contract as it was without this condition.any case, a person cannot be bound by a one-sided offer which is never accepted, particularly when the parties intend that the contract should be reduced to writing. That is the whole point of insisting on a document. It excludes speculation as to what was and what was not agreed to however much the matter might have been raised by one of the parties during the stage oferror is apparent. Facts must be based either on evidence or on admission; they cannot be found to exist from a mere contention by one side especially when they are expressly denied by the other.The inference from the facts stated above is that the contractor entered into the agreement with his eyes open and whatever his one-sided hopes may have been he was content to enter into the agreement as it stood without binding the other side to the new conditions and without even waiting to ascertain the reaction of the other side to his further proposals.It has to be remembered that rationing was not a matter that was under the direction and control of the Dominion Government. It was a local matter handled by the then Provincial authorities and under their direction and control. The C.P.W.D., as a department of the Dominion Government, was not concerned with rationing except that its employees had to submit to rationing like everybody else in the Sindri area. This confusion between the Dominion Government and the Provincial Government occurs in the arbitrators opening sentence under this head where he sets out the contractors contention that "commodities such as rations and cloth which were absolutely essential for the maintenance of his labourers and which were under Government control.It was suggested that at least interest from the date of "suit" could be awarded on the analogy of Section 34 of the Civil Procedure Code, 1908.But section 34 does not apply because an arbitrator is not a "court" within the meaning of the Code nor does the Code apply to arbitrators, and but for S. 34, even a Court would not have the power to give interest after the suit.This was, therefore, also rightly struck out from the award.We pause to note that there was only a delay of five days at the outside in the overall picture. The last date for removal of the last installment of bricks was 25-5-46 and the contractor says under this head that the whole contract was completed by the end of May,is difficult to see how 88 lacs of bricks could have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the contractors case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time table. However, that was a matter within the jurisdiction of the arbitrator and is not a matter in which the Courts can interfere.That concludes Civil Appeal No. 260 of 1953 and we now turn to the other appeal, Civil Appeal No. 12 of 1954. Only two items are in dispute here. Heads 4 and 17 of the claim.The over-all pattern of the claim is the same as in the other case. There was a contractor and he entered into an agreement containing the some terms and conditions, except about the details of supply. It was signed on the same day as the other and by the same authority on behalf of the Dominion Government, and the matter went before the same arbitrator and the award in this case was given on 1-5-1949, one week before the other award. Here also, no specific question of law of was referred and we need not cover the same ground. Our decision is the same here as, there.The fourth head of claim of about cloth and rations. The claim here, and the Dominion Governments reply, is the same as in the other case, but the award in this case is not based on an implied contractual obligation but on "a moral and implied obligation". The error here is even greater then before. The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000.The seventeenth head of claim was about interest. The contractor claimed Rs.27,665 and the arbitrator awarded Rs. 9,954. There is the same error of law apparent on the face of the award.
| 0 | 6,504 | 1,720 |
### 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:
and concluded all their terms; then, at the last minute, one side raised a point about rationing but without waiting for a reply and without having the term entered in the contract, he signed the contract as it stood before the point was raised even during the negotiation.It is an error in law to hold that any contractual obligation can be inferred or implied from these circumstances.45. Then there is still another error. If this implied agreement about rations and cloth does not spring out of the written contract but is to be inferred collaterally as a distinct and subsidiary contract, and we gather that that is the finding, especially as, reference was made to section 9 of the Contract Act, then that is not a contract to which the arbitration clause can apply. Wide though it is, clause 14 is confined to any matter relating to the written contract and if ration and cloth are not covered by the written contract, they are not matters that relate to it.If parties choose to add a fresh contract in addition to or in substitution for the old, then the arbitration clause cannot cover the new contract.See Lord Macmillan in 1942 AC 356 at p.371 (H).46. The last item in dispute in this appeal is claim No. 17 about interest. The statement of claim sets out-"Item 17 - Interest on the amount of money involved in this claim at the rate of Rs. 6 per cent.-Rs. 27,665.This work was finished in May 1946 and it was proper for the department to have decided all our claims at least by 31st December 1947..................But this was not done. Due to this a heavy amount remained blocked up and we were compelled to take money from our bankers on interest. We therefore pray for interest for 16 months from 1-1-48 to 31-4-49".The arbitrator held :"The contractors contention that his claims should have been settled by January 1948 is, in my opinion, reasonable. I therefore award interest at 6 per cent. for 16 months on the total amount of the awards given i.e., Rs, 17,363."Then the arbitrator sets out the amounts awarded under each head of claim. A persual at them shows that each head relates to a claim for an unliquidated sum. The Interest Act, 1939 applies, as interest is not otherwise payable by law in this kind of case (see B. N. Ry. Co., v. Ruttanji Ramji, AIR 1938 PC 67 (J) but even if it be assumed that an arbitrator is a "Court" within the meaning of that Act (a fact that by no means appears to be the case),the following among other conditions must be fulfilled before interest can be awarded under the Act:(1) there must be a debt or a sum certain ;(2) it must be payable at a certain time or otherwise;(3) these debts or sums must be payable by virtue of some written contract at a certain time;(4) There must have been a demand in writing stating that interest will be demanded from the date of the demand.Not one of these elements is present, so the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable.47. It was suggested that at least interest from the date of "suit" could be awarded on the analogy of Section 34 of the Civil Procedure Code, 1908.But section 34 does not apply because an arbitrator is not a "court" within the meaning of the Code nor does the Code apply to arbitrators, and but for S. 34, even a Court would not have the power to give interest after the suit.This was, therefore, also rightly struck out from the award.48. We pause to note that there was only a delay of five days at the outside in the overall picture. The last date for removal of the last installment of bricks was 25-5-46 and the contractor says under this head that the whole contract was completed by the end of May, 1946.It is difficult to see how 88 lacs of bricks could have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the contractors case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time table. However, that was a matter within the jurisdiction of the arbitrator and is not a matter in which the Courts can interfere.49. That concludes Civil Appeal No. 260 of 1953 and we now turn to the other appeal, Civil Appeal No. 12 of 1954. Only two items are in dispute here. Heads 4 and 17 of the claim.50. The over-all pattern of the claim is the same as in the other case. There was a contractor and he entered into an agreement containing the some terms and conditions, except about the details of supply. It was signed on the same day as the other and by the same authority on behalf of the Dominion Government, and the matter went before the same arbitrator and the award in this case was given on 1-5-1949, one week before the other award. Here also, no specific question of law of was referred and we need not cover the same ground. Our decision is the same here as, there.51. The fourth head of claim of about cloth and rations. The claim here, and the Dominion Governments reply, is the same as in the other case, but the award in this case is not based on an implied contractual obligation but on "a moral and implied obligation". The error here is even greater then before. The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000.52. The seventeenth head of claim was about interest. The contractor claimed Rs.27,665 and the arbitrator awarded Rs. 9,954. There is the same error of law apparent on the face of the award.53.
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0
### Explanation:
about rations and it is also evident that the question was not raised when the tender was accepted on behalf of the Dominion Government. The question was raised in a letter to the Executive Engineer, and the contractor signed the contract without waiting for ais well settled that governments can only be bound by contracts that are entered into in a particular way and which are signed by the proper authority.A reference to the agreement, Ex. A(1), will show that it was accepted on behalf of the Dominion Government by the Additional Chief Engineer and not by an Executiveletter written to the Executive Engineer would therefore have no effect and even if it be assumed that the letter was forwarded to the Additional Chief Engineer for consideration, what does it amount to? A tender embodying certain terms is submitted and is accepted on 1-11-45. Both sides are agreed on all matters contained in it and their conduct shows that both sides indicated that the contract should be reduced to writing. Before the agreement is signed, one party wants to include a further condition in the contract.We will assume that the request was made to the other contracting party. But without waiting for the assent of the other side, both sides accept and sign the contractit existed before the fresh suggestion wasIt is an error in law to deduce from this that there was acceptance of the fresh proposal. On the contrary, the legal conclusion is that the new suggestion was dropped and that the contractor was content to accept the contract as it was without this condition.any case, a person cannot be bound by a one-sided offer which is never accepted, particularly when the parties intend that the contract should be reduced to writing. That is the whole point of insisting on a document. It excludes speculation as to what was and what was not agreed to however much the matter might have been raised by one of the parties during the stage oferror is apparent. Facts must be based either on evidence or on admission; they cannot be found to exist from a mere contention by one side especially when they are expressly denied by the other.The inference from the facts stated above is that the contractor entered into the agreement with his eyes open and whatever his one-sided hopes may have been he was content to enter into the agreement as it stood without binding the other side to the new conditions and without even waiting to ascertain the reaction of the other side to his further proposals.It has to be remembered that rationing was not a matter that was under the direction and control of the Dominion Government. It was a local matter handled by the then Provincial authorities and under their direction and control. The C.P.W.D., as a department of the Dominion Government, was not concerned with rationing except that its employees had to submit to rationing like everybody else in the Sindri area. This confusion between the Dominion Government and the Provincial Government occurs in the arbitrators opening sentence under this head where he sets out the contractors contention that "commodities such as rations and cloth which were absolutely essential for the maintenance of his labourers and which were under Government control.It was suggested that at least interest from the date of "suit" could be awarded on the analogy of Section 34 of the Civil Procedure Code, 1908.But section 34 does not apply because an arbitrator is not a "court" within the meaning of the Code nor does the Code apply to arbitrators, and but for S. 34, even a Court would not have the power to give interest after the suit.This was, therefore, also rightly struck out from the award.We pause to note that there was only a delay of five days at the outside in the overall picture. The last date for removal of the last installment of bricks was 25-5-46 and the contractor says under this head that the whole contract was completed by the end of May,is difficult to see how 88 lacs of bricks could have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the contractors case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time table. However, that was a matter within the jurisdiction of the arbitrator and is not a matter in which the Courts can interfere.That concludes Civil Appeal No. 260 of 1953 and we now turn to the other appeal, Civil Appeal No. 12 of 1954. Only two items are in dispute here. Heads 4 and 17 of the claim.The over-all pattern of the claim is the same as in the other case. There was a contractor and he entered into an agreement containing the some terms and conditions, except about the details of supply. It was signed on the same day as the other and by the same authority on behalf of the Dominion Government, and the matter went before the same arbitrator and the award in this case was given on 1-5-1949, one week before the other award. Here also, no specific question of law of was referred and we need not cover the same ground. Our decision is the same here as, there.The fourth head of claim of about cloth and rations. The claim here, and the Dominion Governments reply, is the same as in the other case, but the award in this case is not based on an implied contractual obligation but on "a moral and implied obligation". The error here is even greater then before. The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000.The seventeenth head of claim was about interest. The contractor claimed Rs.27,665 and the arbitrator awarded Rs. 9,954. There is the same error of law apparent on the face of the award.
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Wealth Tax Officer Vs. Thuppan Namboodiripad and Others
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1. These five appeals have come before this Court on certificates granted by the High Court of Kerala. They raise common question of law and will be dealt with together. One of the appeals (No. 262) arises out of a writ petition by the karanavan of a Muslim Mopla Tarwad in the District of North Malabar, governed by the Marumakkathayam Law. The other four appeals arise out of writ petitions by Karanavans of Hindu undivided families in Malabar and Cochin. These five writ petitions challenged the constitutionality of the Wealth Tax Act, No. 27 of 1957, (hereinafter referred to as the Act) and prayed for the quashing of the wealth-tax assessments made in these cases. There are certain differences of facts in the five petitions, but we do not propose to refer to those differences as we propose to confine ourselves to the attack on the constitutionality of the Act. 2. The main contentions of the respondents before the High Court with respect to the constitutionality of the Act were two-fold, namely - (1) that Parliament was not competent to include Hindu undivided families in the charging S.3 of the Act in view of the provision in Enquiry 86 of List 1 of the Seventh Schedule to the Constitution, and (2) that the provision relating to Hindu undivided families was discriminatory and denied equal protection of laws and was therefore hit by Art.14 of the Constitution. 3. The High Court held on the first question that Parliament was competent to include Hindu undivided families in S.3 of the Act. On the second question, the High Court held that though the contention under Art.14 had not been taken in the petition before it in the form in which it was presented at the time of argument, it was open to it to go into the question in view of certain adjournments granted to the parties in this connection and also in view of the fact that the matter had been fully argued before it by learned counsel for the parties. Eventually the High Court said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under Art.14 and it therefore finally proceeded to consider the same. The main contention under this head before the High Court was that the Act though it subjected Hindu undivided families to a tax under S.3 thereof made no provision for Muslim Mopla Tarwads which were also undivided families and therefore there was discrimination so far as undivided families were concerned. In that connection the contention of the appellant before the High Court was that Muslim Mopla Tarwads were so insignificant in number that their existence could be ignored and the practice of the appellant had been to assess such Tarwads under the Act as individuals. The High Court however was not impressed by this contention on behalf of the appellant and said that it behoved the department to furnish some information to sustain the contention that Muslim Mopla Tarwads were so insignificant in number as to be negligible and that had not been done. The High Court therefore finally held that there was discrimination as between Hindu undivided families and Muslim Mopla Tarwads which were also undivided families and therefore the charging section in so far as it governed undivided families was hit by Art.14. 4. We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of Art.14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (no respondents before us) on the line, on which the argument finally developed at the hearing. It is true that some adjournments were granted by the High Court in this connection; but we are not satisfied that the case for the application or otherwise of Art.14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that Art.14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This Court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectively or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under Art.14 properly before the High Court supported by facts and figures. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct.
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1[ds]4. We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of Art.14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (no respondents before us) on the line, on which the argument finally developed at the hearing. It is true that some adjournments were granted by the High Court in this connection; but we are not satisfied that the case for the application or otherwise of Art.14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that Art.14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This Court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectively or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under Art.14 properly before the High Court supported by facts and figures. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct.
| 1 | 1,014 | 420 |
### 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:
1. These five appeals have come before this Court on certificates granted by the High Court of Kerala. They raise common question of law and will be dealt with together. One of the appeals (No. 262) arises out of a writ petition by the karanavan of a Muslim Mopla Tarwad in the District of North Malabar, governed by the Marumakkathayam Law. The other four appeals arise out of writ petitions by Karanavans of Hindu undivided families in Malabar and Cochin. These five writ petitions challenged the constitutionality of the Wealth Tax Act, No. 27 of 1957, (hereinafter referred to as the Act) and prayed for the quashing of the wealth-tax assessments made in these cases. There are certain differences of facts in the five petitions, but we do not propose to refer to those differences as we propose to confine ourselves to the attack on the constitutionality of the Act. 2. The main contentions of the respondents before the High Court with respect to the constitutionality of the Act were two-fold, namely - (1) that Parliament was not competent to include Hindu undivided families in the charging S.3 of the Act in view of the provision in Enquiry 86 of List 1 of the Seventh Schedule to the Constitution, and (2) that the provision relating to Hindu undivided families was discriminatory and denied equal protection of laws and was therefore hit by Art.14 of the Constitution. 3. The High Court held on the first question that Parliament was competent to include Hindu undivided families in S.3 of the Act. On the second question, the High Court held that though the contention under Art.14 had not been taken in the petition before it in the form in which it was presented at the time of argument, it was open to it to go into the question in view of certain adjournments granted to the parties in this connection and also in view of the fact that the matter had been fully argued before it by learned counsel for the parties. Eventually the High Court said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under Art.14 and it therefore finally proceeded to consider the same. The main contention under this head before the High Court was that the Act though it subjected Hindu undivided families to a tax under S.3 thereof made no provision for Muslim Mopla Tarwads which were also undivided families and therefore there was discrimination so far as undivided families were concerned. In that connection the contention of the appellant before the High Court was that Muslim Mopla Tarwads were so insignificant in number that their existence could be ignored and the practice of the appellant had been to assess such Tarwads under the Act as individuals. The High Court however was not impressed by this contention on behalf of the appellant and said that it behoved the department to furnish some information to sustain the contention that Muslim Mopla Tarwads were so insignificant in number as to be negligible and that had not been done. The High Court therefore finally held that there was discrimination as between Hindu undivided families and Muslim Mopla Tarwads which were also undivided families and therefore the charging section in so far as it governed undivided families was hit by Art.14. 4. We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of Art.14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (no respondents before us) on the line, on which the argument finally developed at the hearing. It is true that some adjournments were granted by the High Court in this connection; but we are not satisfied that the case for the application or otherwise of Art.14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that Art.14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This Court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectively or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under Art.14 properly before the High Court supported by facts and figures. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct.
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1
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4. We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of Art.14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (no respondents before us) on the line, on which the argument finally developed at the hearing. It is true that some adjournments were granted by the High Court in this connection; but we are not satisfied that the case for the application or otherwise of Art.14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that Art.14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This Court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectively or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under Art.14 properly before the High Court supported by facts and figures. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct.
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State of Karnataka and Others Vs. Southern India Plywood Company, Peramanoor
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1. Pursuant to an agreement between the parties and a further allotment, trees of the species described in the agreements comprising 3000 cubic meters of softwood in all were permitted to be cut and removed by the respondent. The rate for the payment of the wood was fixed by the agreement. It has been found by the High Court that the respondent felled trees of the species described and the total amount of wood collected from the trees felled was not in excess of 3000 cubic meters, although the felling was done from areas other than those specified in the agreement as there was a mistake in the fixing of the areas from which the trees could be cut. The High Court has further found these trees were felled by the respondent with the full knowledge and consent of the concerned Forest Officers. Because of certain proceedings the wood was not allowed to be removed by the respondent for some time and was stored in the godowns of the appellants. By the impugned judgment the Karnataka High Court held that the respondent was entitled to remove this wood at the rate agreed upon between the parties under the said agreement 2. Learned counsel for the appellants submits that under the provisions of Section 101-A(2) of the Karnataka Forest Act, 1963, the respondent can be permitted to remove the wood only at the rate current at the time of the removal and hence, the respondent is liable to pay for the wood at a higher rate. Sub-section (2) to Section 101-A of the said Act was inserted by the Karnataka Forest (Amendment) Act, 1980, which was first published in the Karnataka Gazette Extraordinary on February 23, 1981. In our view, it is not open to the appellants to raise this contention for the first time in this Court as he is seeking to do. An examination of the merits of this submission would require an investigation of facts as it would be necessary to determine as to when the wood was cut, when it was ready for removal and when it was removed, as Section 101-A(2) is prospective in operation. As the question was not raised before the High Court that investigation has not been done at all. We may, moreover, point out that even from the averments made in the special leave petition it appears that the entire quantum of the wood in question was cut prior to January 31, 1981 whereas the amendment to the provisions of Section 101-A of the Karnataka Forest Act amending the provisions of Section 101-A and inserting sub-section (2) therein on which learned counsel for the appellants seeks to rely did not come into effect till February 23, 1981, being the date on which the Karnataka Forest (Amendment) Act, 1980 was published in the official Gazette, after receiving the assent of the President of India.
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0[ds]As the question was not raised before the High Court that investigation has not been done at all. We may, moreover, point out that even from the averments made in the special leave petition it appears that the entire quantum of the wood in question was cut prior to January 31, 1981 whereas the amendment to the provisions of Sectionof the Karnataka Forest Act amending the provisions of Sectionion (2) therein on which learned counsel for the appellants seeks to rely did not come into effect till February 23, 1981, being the date on which the Karnataka Forest (Amendment) Act, 1980 was published in the official Gazette, after receiving the assent of the President of India.
| 0 | 526 | 133 |
### 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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1. Pursuant to an agreement between the parties and a further allotment, trees of the species described in the agreements comprising 3000 cubic meters of softwood in all were permitted to be cut and removed by the respondent. The rate for the payment of the wood was fixed by the agreement. It has been found by the High Court that the respondent felled trees of the species described and the total amount of wood collected from the trees felled was not in excess of 3000 cubic meters, although the felling was done from areas other than those specified in the agreement as there was a mistake in the fixing of the areas from which the trees could be cut. The High Court has further found these trees were felled by the respondent with the full knowledge and consent of the concerned Forest Officers. Because of certain proceedings the wood was not allowed to be removed by the respondent for some time and was stored in the godowns of the appellants. By the impugned judgment the Karnataka High Court held that the respondent was entitled to remove this wood at the rate agreed upon between the parties under the said agreement 2. Learned counsel for the appellants submits that under the provisions of Section 101-A(2) of the Karnataka Forest Act, 1963, the respondent can be permitted to remove the wood only at the rate current at the time of the removal and hence, the respondent is liable to pay for the wood at a higher rate. Sub-section (2) to Section 101-A of the said Act was inserted by the Karnataka Forest (Amendment) Act, 1980, which was first published in the Karnataka Gazette Extraordinary on February 23, 1981. In our view, it is not open to the appellants to raise this contention for the first time in this Court as he is seeking to do. An examination of the merits of this submission would require an investigation of facts as it would be necessary to determine as to when the wood was cut, when it was ready for removal and when it was removed, as Section 101-A(2) is prospective in operation. As the question was not raised before the High Court that investigation has not been done at all. We may, moreover, point out that even from the averments made in the special leave petition it appears that the entire quantum of the wood in question was cut prior to January 31, 1981 whereas the amendment to the provisions of Section 101-A of the Karnataka Forest Act amending the provisions of Section 101-A and inserting sub-section (2) therein on which learned counsel for the appellants seeks to rely did not come into effect till February 23, 1981, being the date on which the Karnataka Forest (Amendment) Act, 1980 was published in the official Gazette, after receiving the assent of the President of India.
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### Explanation:
As the question was not raised before the High Court that investigation has not been done at all. We may, moreover, point out that even from the averments made in the special leave petition it appears that the entire quantum of the wood in question was cut prior to January 31, 1981 whereas the amendment to the provisions of Sectionof the Karnataka Forest Act amending the provisions of Sectionion (2) therein on which learned counsel for the appellants seeks to rely did not come into effect till February 23, 1981, being the date on which the Karnataka Forest (Amendment) Act, 1980 was published in the official Gazette, after receiving the assent of the President of India.
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SHIVNARAYAN (D) BY LRS Vs. MANIKLAL (D) THR. LRS
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jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action. 22. Justice Verma of Allahabad High Court in his concurring opinion in Karan Singh v. Kunwar Sen (supra) while considering Section 17 of C.P.C. has explained his views by giving illustration. Following was observed by Justice Verma: I agree, Suppose a scattered Hindu dies possessed of immovable property scattered all over India at Karachi, Peshwar, Lahore, Allahabad, Patna, Dacca, Shillong, Calcutta, Madras and Bombay and is succeeded by his widow who, in the course of 40 or 50 years, transfers on different dates portions of the property situated at each of the places mentioned above, to different persons each of whom resides at the place where the property transferred to him is situated, and the transfers are wholly unconnected with, and independent of one another. Upon the widows death the reversioner wants to challenge these various transfers. Learned counsel for the plaintiffs has argued that in such a case the reversioner is entitled to bring one suit challenging all the transfers at any one of the places mentioned above, impleading all the transferees, I find it very difficult to hold that such a result is contemplated by the provisions of the Code of Civil Procedure upon which reliance has been placed and which are mentioned in the judgment of my learned brother. I do not consider it necessary to pursue the matter any further. It is clear to my mind that, if the plaintiffs; argument mentioned above is accepted, startling results will follow. 23. Now, we come to submission of learned counsel for the appellant based on Section 39 sub-section (1) (c)of C.P.C. It is submitted that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in Section 17. The scheme as delineated by Section 39 indicates that when a decree is passed by a Court with regard to sale or delivery of immovable property situated outside the local limits of the jurisdiction of that Court it may transfer the decree for execution to another Court. The provision clearly indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(C) re-enforces our conclusion that as per Section 17 suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. We may, however, add that passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court. 24. We may further notice that Section 17 uses the words the suit may be instituted in any Court. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the properties. 25. The partial partition of property is well accepted principle with regard to a joint family. In Maynes Hindu Law & Usage, 16 th Edition in paragraph 485 following has been stated: 485. Partition partial or total.- Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. Partial as to properties.- It is open to the members of a joint family to severe in interest in respect to a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Until some positive action is taken to have partition of joint family property, it would remain joint family property. 26. Mulla on Hindu Law, 22 nd Edition also refers to partial partition both in respect of the property and or in respect of the persons making it. In paragraph 327 following has been stated: 327. Partial partition.-(1) A partition between coparceners may be partial either in respect of the property or in respect of the persons making it. After a partition is affected, if some of the properties are treated as common properties, it cannot be held that such properties continued to be joint properties, since there was a division of title, but such properties were not actually divided. (2) Partial as to property.- It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. The issues arising in the present case being not related to subject of partial partition the issue need not to be dealt with any further. 27. Learned counsel for the appellant has also submitted that permitting filing of a separate suit with regard to property situate in different jurisdiction shall give rise to conflicting decision and decision in one suit may also be res judicata in another suit. We in the present case being not directly concerned with a situation where there are more than one suit or a case having conflicting opinion we need not dwell the issue any further. 28. Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16.
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1[ds]10. Applying Section 13 of General Clauses Act, the Bombay High Court explaining the word property used in Section 17 held that it includes properties. We are also of the same view that the word property used in Section 17 can be more than one property or properties11. The word property under Section 17 of the Civil Procedure code may also be properties, hence, in a schedule of plaint, more than one property can be included. Section 17 can be applied in event there are several properties, one or more of which may be located in different jurisdiction of courts. The word portion of the property occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word portion of the property cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts17. The views of the different High Courts as well as of the Privy Council, as noticed above, clearly indicate that Section 17 has been held to be applicable when there are more than one property situated in different districts18. The point to be noticed is that the permissibility of instituting suit in one Court, where properties, which are subject matter of the suit are situated in jurisdiction of different courts have been permitted with one rider, i.e., cause of action for filing the suit regarding property situated in different jurisdiction is one and the same. In a suit when the cause of action for filing the suit is different, the Courts have not upheld the jurisdiction of one Court to entertain suits pertaining to property situated in different courts. In this context, we need to refer to some judgments of High Courts as well as of the Privy Council, which has considered the issue.21. Thus, for a suit filed in a Court pertaining to properties situated in jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action23. Now, we come to submission of learned counsel for the appellant based on Section 39 sub-section (1) (c)of C.P.C. It is submitted that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in Section 17. The scheme as delineated by Section 39 indicates that when a decree is passed by a Court with regard to sale or delivery of immovable property situated outside the local limits of the jurisdiction of that Court it may transfer the decree for execution to another Court. The provision clearly indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(C) re-enforces our conclusion that as per Section 17 suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. We may, however, add that passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court24. We may further notice that Section 17 uses the words the suit may be instituted in any Court. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the propertiesThe issues arising in the present case being not related to subject of partial partition the issue need not to be dealt with any furtherLearned counsel for the appellant has also submitted that permitting filing of a separate suit with regard to property situate in different jurisdiction shall give rise to conflicting decision and decision in one suit may also be res judicata in anotherWe in the present case being not directly concerned with a situation where there are more than one suit or a case having conflicting opinion we need not dwell the issue any further30. Learned counsel for the appellant has also referred to and relied on order II Rule 2 and Order II Rule 3 C.P.C. Learned counsel submits that order II Rule 2 sub-clause (1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.The cause of action according to Order II Rule 2 sub-clause (1) is one cause of action. What is required by Order II Rule 2 sub-clause (1) is that every suit shall include the whole of the claim on the basis of a cause of action. Order II Rule 2 cannot be read in a manner as to permit clubbing of different causes of action in a suit. Relying on Order II Rule 3 learned counsel for the appellant submits that joinder of causes of action is permissible. A perusal of sub-clause (1) of Order II Rule 3 provides that plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. What is permissible is to unite in the same suit several causes of action against the same defendant, or the same defendants jointly. In the present case suit is not against the same defendant or the same defendants jointly. As noticed above there are different set of defendants who have different causes of actions32. It is relevant to notice in the application filed by defendant Nos. 7 and 8, the heading of the application itself referred to mis-joinder of parties and causes of action. In Para (1) of the application, it was categorically mentioned that there was mis-joinder of parties and causes of action. The trial court in its order dated 17.08.2011 has also clearly held that plaintiff has clubbed different causes of action which is to be deleted from the present suit. The trial court further held that the plaintiff is not justified in including different properties and separate cause of actions combining in single suit.
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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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jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action. 22. Justice Verma of Allahabad High Court in his concurring opinion in Karan Singh v. Kunwar Sen (supra) while considering Section 17 of C.P.C. has explained his views by giving illustration. Following was observed by Justice Verma: I agree, Suppose a scattered Hindu dies possessed of immovable property scattered all over India at Karachi, Peshwar, Lahore, Allahabad, Patna, Dacca, Shillong, Calcutta, Madras and Bombay and is succeeded by his widow who, in the course of 40 or 50 years, transfers on different dates portions of the property situated at each of the places mentioned above, to different persons each of whom resides at the place where the property transferred to him is situated, and the transfers are wholly unconnected with, and independent of one another. Upon the widows death the reversioner wants to challenge these various transfers. Learned counsel for the plaintiffs has argued that in such a case the reversioner is entitled to bring one suit challenging all the transfers at any one of the places mentioned above, impleading all the transferees, I find it very difficult to hold that such a result is contemplated by the provisions of the Code of Civil Procedure upon which reliance has been placed and which are mentioned in the judgment of my learned brother. I do not consider it necessary to pursue the matter any further. It is clear to my mind that, if the plaintiffs; argument mentioned above is accepted, startling results will follow. 23. Now, we come to submission of learned counsel for the appellant based on Section 39 sub-section (1) (c)of C.P.C. It is submitted that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in Section 17. The scheme as delineated by Section 39 indicates that when a decree is passed by a Court with regard to sale or delivery of immovable property situated outside the local limits of the jurisdiction of that Court it may transfer the decree for execution to another Court. The provision clearly indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(C) re-enforces our conclusion that as per Section 17 suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. We may, however, add that passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court. 24. We may further notice that Section 17 uses the words the suit may be instituted in any Court. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the properties. 25. The partial partition of property is well accepted principle with regard to a joint family. In Maynes Hindu Law & Usage, 16 th Edition in paragraph 485 following has been stated: 485. Partition partial or total.- Partition may be either total or partial. A partition may be partial either as regards the persons making it or the property divided. Partial as to properties.- It is open to the members of a joint family to severe in interest in respect to a part of the joint estate while retaining their status of a joint family and holding the rest as the properties of an undivided family. Until some positive action is taken to have partition of joint family property, it would remain joint family property. 26. Mulla on Hindu Law, 22 nd Edition also refers to partial partition both in respect of the property and or in respect of the persons making it. In paragraph 327 following has been stated: 327. Partial partition.-(1) A partition between coparceners may be partial either in respect of the property or in respect of the persons making it. After a partition is affected, if some of the properties are treated as common properties, it cannot be held that such properties continued to be joint properties, since there was a division of title, but such properties were not actually divided. (2) Partial as to property.- It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. The issues arising in the present case being not related to subject of partial partition the issue need not to be dealt with any further. 27. Learned counsel for the appellant has also submitted that permitting filing of a separate suit with regard to property situate in different jurisdiction shall give rise to conflicting decision and decision in one suit may also be res judicata in another suit. We in the present case being not directly concerned with a situation where there are more than one suit or a case having conflicting opinion we need not dwell the issue any further. 28. Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas Section 17 engrafts an exception to the general rule as occurring in Section 16.
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of the property occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word portion of the property cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts17. The views of the different High Courts as well as of the Privy Council, as noticed above, clearly indicate that Section 17 has been held to be applicable when there are more than one property situated in different districts18. The point to be noticed is that the permissibility of instituting suit in one Court, where properties, which are subject matter of the suit are situated in jurisdiction of different courts have been permitted with one rider, i.e., cause of action for filing the suit regarding property situated in different jurisdiction is one and the same. In a suit when the cause of action for filing the suit is different, the Courts have not upheld the jurisdiction of one Court to entertain suits pertaining to property situated in different courts. In this context, we need to refer to some judgments of High Courts as well as of the Privy Council, which has considered the issue.21. Thus, for a suit filed in a Court pertaining to properties situated in jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action23. Now, we come to submission of learned counsel for the appellant based on Section 39 sub-section (1) (c)of C.P.C. It is submitted that Section 39(1)(c) of C.P.C. is also a pointer to what is intended in Section 17. The scheme as delineated by Section 39 indicates that when a decree is passed by a Court with regard to sale or delivery of immovable property situated outside the local limits of the jurisdiction of that Court it may transfer the decree for execution to another Court. The provision clearly indicates that a decree of Court may include immovable property situate in local limits of that Court as well as property situated outside the local limits of the jurisdiction of the Court passing the decree. Section 39(1)(C) re-enforces our conclusion that as per Section 17 suit may be filed with regard to immovable property situated outside the local limit of the jurisdiction of the Court. We may, however, add that passing a decree by a Court with regard to immovable property situate outside the local jurisdiction of the Court passing the decree may not only confine to Section 17 but there may be other circumstances where such decree is passed. Section 20 of C.P.C. may be one of the circumstances where decree can be passed against the defendant whose property may situate in local jurisdiction of local limits of more than one Court24. We may further notice that Section 17 uses the words the suit may be instituted in any Court. The use of word in Section 17 makes it permissive leaving discretion in some cases not to file one suit with regard to immovable property situated in local jurisdiction of more than one court. One of the exceptions to the rule is cases of partial partition where parties agree to keep some property joint and get partition of some of the propertiesThe issues arising in the present case being not related to subject of partial partition the issue need not to be dealt with any furtherLearned counsel for the appellant has also submitted that permitting filing of a separate suit with regard to property situate in different jurisdiction shall give rise to conflicting decision and decision in one suit may also be res judicata in anotherWe in the present case being not directly concerned with a situation where there are more than one suit or a case having conflicting opinion we need not dwell the issue any further30. Learned counsel for the appellant has also referred to and relied on order II Rule 2 and Order II Rule 3 C.P.C. Learned counsel submits that order II Rule 2 sub-clause (1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.The cause of action according to Order II Rule 2 sub-clause (1) is one cause of action. What is required by Order II Rule 2 sub-clause (1) is that every suit shall include the whole of the claim on the basis of a cause of action. Order II Rule 2 cannot be read in a manner as to permit clubbing of different causes of action in a suit. Relying on Order II Rule 3 learned counsel for the appellant submits that joinder of causes of action is permissible. A perusal of sub-clause (1) of Order II Rule 3 provides that plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. What is permissible is to unite in the same suit several causes of action against the same defendant, or the same defendants jointly. In the present case suit is not against the same defendant or the same defendants jointly. As noticed above there are different set of defendants who have different causes of actions32. It is relevant to notice in the application filed by defendant Nos. 7 and 8, the heading of the application itself referred to mis-joinder of parties and causes of action. In Para (1) of the application, it was categorically mentioned that there was mis-joinder of parties and causes of action. The trial court in its order dated 17.08.2011 has also clearly held that plaintiff has clubbed different causes of action which is to be deleted from the present suit. The trial court further held that the plaintiff is not justified in including different properties and separate cause of actions combining in single suit.
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Himachal Pradesh Bus Stand Management and Development Authority (HPBSM&DA) Vs. The Central Empowered Committee Etc. & Ors
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duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. 60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows: 64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more. 61. In M.C. Mehta vs Union of India (2018) 18 SCC 397, a two judge Bench of this Court held that the land notified under Punjab Land Preservation Act, 1900 in the Kant Enclave was to be treated as forest land. As a result, any construction made on the land or its utilization for non-forest purposes without Central Government approval was violative of the Forest Act and therefore illegal. The relevant excerpt of this Courts decision, speaking through Justice Madan B. Lokur, is as follows: 132... R. Kant & Co. and the Town and Country Department of the State of Haryana being fully aware of the statutory Notification dated 18-8-1992 and the restrictions placed by the notification. R. Kant & Co. and the Town and Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town and Country Department of the State of Haryana. They must pay for this. 62. In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a parking space and bus stand in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal. I.4 Jurisdiction of NGT 63. An ancillary issue now remains for our consideration, which is whether the NGT could have adjudicated upon a violation of the TCP Act, which is not an Act present in Schedule I of the NGT Act. In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development (2020) 9 SCC 781, one of us speaking for the Court (Justice Indira Banerjee), held as follows: 41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. 42. In view of the definition of substantial question relating to environment in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large. 43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments. 44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I. The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGTs impugned judgment grounds its decision in the appellant and second respondents violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act. J. Conclusion
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1[ds]41. The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex is illegal and constitutes a brazen violation of law. The permission which was granted by MOEF on 12 November 1997 was only for construction of a parking place at McLeod Ganj. Similarly, the permission granted on 1 March 2001 was granted for constructing a bus stand in the same area. At no point was any permission granted for the construction of a hotel or commercial structure. NGTs finding on this count commends acceptance. The appellant, on being granted permission to engage in construction for a specified purpose, unlawfully utilised that permission as the basis to construct a different structure which was not authorized. It has done so in disregard of the provisions of the Forest Act.The provisions of Section 2 mandate strict and punctilious compliance. Mere substantial compliance is not enough. The construction of the Hotel-cum- Restaurant structure is entirely illegal, having been carried out in clear breach of this mandatory statutory stipulation. That officials of statutory bodies of the State Government have connived at the violation of law is a reflection on the nature of governance by those who are expected to act within the bounds of law.43. The report of the CEC is a serious indictment of the actions of the appellant. The CEC report indicates that: (i) the construction of the Hotel-cum- Restaurant structure in Bus Stand Complex was illegal; (ii) the land was a reserved forest; (iii) there was no valid permission for diversion for the land for the construction of the Hotel-cum-Restaurant structure; (iv) Forest Act consent was taken only for the parking facility and the bus stand; (v) there was no valid approval from the TCP Department of the plans of the entire Bus Stand Complex; and (vi) the finally constructed Bus Stand Complex is not in conformity with the appellants own proposed plans in the RFP.44. The findings which were arrived at in NGTs judgment are supported by the report submitted by the District and Sessions Judge. The report presents a striking analysis of the manner in which the Hotel-cum-Restaurant structure was constructed in breach of statutory requirements and how this was made possible by the connivance of multiple state actors. The relevant findings from the report are excerpted below:4. The EPC has prepared the conceptual plan Ex. Cl I4A, but the bus stand authority went on to flout the aforesaid conceptual plan and on its own and decided to construct bus stand-cum-parking and hotel complex on two pieces of forest land under BOT basis. No sanction or approval was obtained by the Bus Stand Authority under the provision of Forest (Conservation) Act, 1980 for diversion of forest land to use the same for non - forest purpose. The Government of India Ministry of Environment and Forest, turned down the request to use the forest land for non-forest purpose and change the name of user agency from SDO(C) and H.P. Tourism Department to Bus Stand Authority vide copy of letter Ex. Cl03.7. The illegal construction of disputed structure was raised with sole motive to give undue advantage to M/s Prashanti Surya Construction Company and for the same Bus Stand Authority is primarily responsible and in addition to that the officers/officials of other concerned departments are also responsible.12. In this case the Bus Stand Authority did not inform in writing the Director of Town and Country Planning Department, regarding the construction work in question as discussed here in above in the aforesaid statutory provisions. Said information should have been given by the CEO of the Bus Stand Authority in the year of 2005 when the construction work started on the spot. So, the CEO of Bus Stand Authority in the year 2005, is responsible for ignoring the statutory provisions of Section 28 of the H.P. Town and Country Planning Act.45. NGT acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms. Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the lap of nature, will put us on the path of judicially sanctioned environmental destruction.48. In its decision in Hanuman Laxman Aroskar vs Union of India (supra), this Court, speaking through one of us (DY Chandrachud, J.) recognized the importance of protecting the environmental rule of law. The court observed:142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement — both in developed and developing countries alike156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution.The point, therefore, is simply this – the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.53. In the case before us, it is not possible for us to determine in quantifiable terms the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the second respondent on the ecology of the area. Both of them have tried to argue that the number of trees felled by them, in the case of the present construction, is what it would have been, had they only built a bus stand and a parking space. However, what we can record a determination on is the way in which the appellant and second respondent have gone about achieving this object. Specifically, the parties have engaged in the construction without complying with the plans drawn by the appellants third-party consultants, which were agreed to by them in the RFP. The construction proceeded even when the TCP Department tried to halt it, refusing to approve its plans. Even the post facto refusal by the MOEF for changing the nature of the diverted forest land was not enough to stop the parties. Ultimately, when they were forced to halt the construction by the CEC, they proceeded with it under the guise of an order of this Court which permitted only legal construction. A combination of these circumstances highlights not only conduct oblivious of the environmental consequences of their actions, but an active disdain for them in favour of commercial benefits. While the second respondent was a private entity, they were actively supported in these efforts by the appellant. Hence, it is painfully clear that their actions stand in violation of the environmental rule of law. Whatever else the environmental rule of law may mean, it surely means that construction of this sort cannot receive our endorsement, no matter what its economic benefits may be. A lack of scientific certainty is no ground to imperil the environment.54. In a recent decision of this Court in Bengaluru Development Authority vs Sudhakar Hegde 2020 SCC OnLine SC 328, this Court, speaking through one of us (DY Chandrachud, J.) held:107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth…108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions…109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.55. In Lal Bahadur vs State of Uttar Pradesh (2018) 15 SCC 407, this Court underscored the principles that are the cornerstone of our environmental jurisprudence, as emerging from a settled line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students Union (2019) 8 SCC 177, this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining.58. The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the shield of the rule of law can be used as a facilitative instrument in ensuring compliance with environmental regulations.59. We are not traversing unexplored territory. In the past, this Court has clamped down on illegal activities on reserved forest land specifically, and in violation of environmental laws more generally, and taken to task those responsible for it. In a recent three-judge bench decision of this Court in the case of Hospitality Association of Mudumalai vs In Defence of Environment and Animals 2020 SCC OnLine SC 838, this Court was confronted with a situation involving illegal commercial activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking for the Court, held as follows:42… the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows:64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more.62. In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a parking space and bus stand in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal.In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development (2020) 9 SCC 781, one of us speaking for the Court (Justice Indira Banerjee), held as follows:41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.42. In view of the definition of substantial question relating to environment in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments.44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I.The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGTs impugned judgment grounds its decision in the appellant and second respondents violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act.
| 1 | 12,726 | 2,977 |
### 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:
duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. 60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows: 64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more. 61. In M.C. Mehta vs Union of India (2018) 18 SCC 397, a two judge Bench of this Court held that the land notified under Punjab Land Preservation Act, 1900 in the Kant Enclave was to be treated as forest land. As a result, any construction made on the land or its utilization for non-forest purposes without Central Government approval was violative of the Forest Act and therefore illegal. The relevant excerpt of this Courts decision, speaking through Justice Madan B. Lokur, is as follows: 132... R. Kant & Co. and the Town and Country Department of the State of Haryana being fully aware of the statutory Notification dated 18-8-1992 and the restrictions placed by the notification. R. Kant & Co. and the Town and Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town and Country Department of the State of Haryana. They must pay for this. 62. In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a parking space and bus stand in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal. I.4 Jurisdiction of NGT 63. An ancillary issue now remains for our consideration, which is whether the NGT could have adjudicated upon a violation of the TCP Act, which is not an Act present in Schedule I of the NGT Act. In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development (2020) 9 SCC 781, one of us speaking for the Court (Justice Indira Banerjee), held as follows: 41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. 42. In view of the definition of substantial question relating to environment in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large. 43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments. 44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I. The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGTs impugned judgment grounds its decision in the appellant and second respondents violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act. J. Conclusion
### Response:
1
### Explanation:
line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students Union (2019) 8 SCC 177, this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining.58. The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the shield of the rule of law can be used as a facilitative instrument in ensuring compliance with environmental regulations.59. We are not traversing unexplored territory. In the past, this Court has clamped down on illegal activities on reserved forest land specifically, and in violation of environmental laws more generally, and taken to task those responsible for it. In a recent three-judge bench decision of this Court in the case of Hospitality Association of Mudumalai vs In Defence of Environment and Animals 2020 SCC OnLine SC 838, this Court was confronted with a situation involving illegal commercial activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking for the Court, held as follows:42… the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows:64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more.62. In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a parking space and bus stand in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal.In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development (2020) 9 SCC 781, one of us speaking for the Court (Justice Indira Banerjee), held as follows:41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.42. In view of the definition of substantial question relating to environment in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments.44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I.The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGTs impugned judgment grounds its decision in the appellant and second respondents violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act.
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Commissioner Of Sales Tax, U.P Vs. Madan Lal Das & Sons, Bareilly
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in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised of reviewed shall be excluded only if such copy has to be file alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of Judgment, when the legislature has not inserted such a proviso in section 12(2). It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revision petition. 6. The matter indeed is not res integra. In the case of J. N. Surty vs. T. S. Chettiyar (1), the Judicial Committee after noticing the conflict in the decisions of the High Courts held that section 12(2) of the Indian Limitation Act, 1908 applied even when by a rule of the High Court a memorandum of appeal need not be accompanied by a copy of the decree. Lord Phillimore speaking on behalf of the Judicial Committee observed :"Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation section 12 makes no reference to the Code of Civil Procedure or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction. It, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it." 7. Following the above decision, it was held by a Full Bench consisting of five Judges of the Lahore High Court in the case of Punjab Co-operative Bank Ltd., Lahore v. The Official Liquidators. The Punjab Cotton Press Co. Ltd. that even though under the Rules and Orders of the High Court no copy of the judgment is required to be filed along with the memorandum of appeal preferred under section 202 of the Indian Companies Act from an order of a single Judge, the provisions of section 12 of the Indian Limitation Act would be attracted. The provisions of section 12 were also held to govern an appeal under Letters Patent. 8. A full Bench of the Patna High Court in the case of Mt. Lalitkuari vs. Mahaprasad N. Singh, also held that the provisions of section 12 of the Limitation Act were applicable to Letter Patent appeals under Clause 10 of the Letters Patent. 9. The above decision of the Judicial Committee was followed by this Court in the case of Additional Collector of Customs, Calcutta & Anr. vs. M/s. Best & Co. 10. Similar view was expressed by this Court in the case of S. A. Gafoor vs. Ayesha Beghum & Ors. 11. It is plain that since 1928 when the Judicial Committee decided the case of Surty (supra), the view which has been consistently taken by the Courts in India is that the provisions of section 12(2) of the Limitation Act would apply even though the copy mentioned in that sub- section is not required to be filed along with the memorandum of appeal. The same position should hold good in case of revision petitions ever since Limitation Act of 1963 came into force. 12. Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respondent, and as such, it was not necessary for the respondent to apply for copy of the said order. In this respect we find that the copy which was served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner. 13. In the case of State of Uttar Pradesh v. Maharaj Narain & Ors. (6) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the Limitation Act, 1963.
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1[ds]This contention is equally devoid of force. There is nothing in the language of section 12(2) of the Limitation Act to justify the inference that the time spent for obtaining copy of the order sought to be revised can be excluded only if such a copy is required to be filed along with the revision application. All that section 12(2) states in this connection is that in computing the period of limitation a revision, the time requisite for obtaining a copy of the order sought to be revised shall be excluded. It would be impermissible to read in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised of reviewed shall be excluded only if such copy has to be file alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of Judgment, when the legislature has not inserted such a proviso in section 12(2). It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revision petition12. Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respondent, and as such, it was not necessary for the respondent to apply for copy of the said orderIn this respect we find that the copy which was served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner13. In the case of State of Uttar Pradesh v. Maharaj Narain & Ors. (6) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the Limitation Act, 1963.
| 1 | 2,552 | 570 |
### 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 section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised of reviewed shall be excluded only if such copy has to be file alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of Judgment, when the legislature has not inserted such a proviso in section 12(2). It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revision petition. 6. The matter indeed is not res integra. In the case of J. N. Surty vs. T. S. Chettiyar (1), the Judicial Committee after noticing the conflict in the decisions of the High Courts held that section 12(2) of the Indian Limitation Act, 1908 applied even when by a rule of the High Court a memorandum of appeal need not be accompanied by a copy of the decree. Lord Phillimore speaking on behalf of the Judicial Committee observed :"Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation section 12 makes no reference to the Code of Civil Procedure or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction. It, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it." 7. Following the above decision, it was held by a Full Bench consisting of five Judges of the Lahore High Court in the case of Punjab Co-operative Bank Ltd., Lahore v. The Official Liquidators. The Punjab Cotton Press Co. Ltd. that even though under the Rules and Orders of the High Court no copy of the judgment is required to be filed along with the memorandum of appeal preferred under section 202 of the Indian Companies Act from an order of a single Judge, the provisions of section 12 of the Indian Limitation Act would be attracted. The provisions of section 12 were also held to govern an appeal under Letters Patent. 8. A full Bench of the Patna High Court in the case of Mt. Lalitkuari vs. Mahaprasad N. Singh, also held that the provisions of section 12 of the Limitation Act were applicable to Letter Patent appeals under Clause 10 of the Letters Patent. 9. The above decision of the Judicial Committee was followed by this Court in the case of Additional Collector of Customs, Calcutta & Anr. vs. M/s. Best & Co. 10. Similar view was expressed by this Court in the case of S. A. Gafoor vs. Ayesha Beghum & Ors. 11. It is plain that since 1928 when the Judicial Committee decided the case of Surty (supra), the view which has been consistently taken by the Courts in India is that the provisions of section 12(2) of the Limitation Act would apply even though the copy mentioned in that sub- section is not required to be filed along with the memorandum of appeal. The same position should hold good in case of revision petitions ever since Limitation Act of 1963 came into force. 12. Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respondent, and as such, it was not necessary for the respondent to apply for copy of the said order. In this respect we find that the copy which was served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner. 13. In the case of State of Uttar Pradesh v. Maharaj Narain & Ors. (6) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the Limitation Act, 1963.
### Response:
1
### Explanation:
This contention is equally devoid of force. There is nothing in the language of section 12(2) of the Limitation Act to justify the inference that the time spent for obtaining copy of the order sought to be revised can be excluded only if such a copy is required to be filed along with the revision application. All that section 12(2) states in this connection is that in computing the period of limitation a revision, the time requisite for obtaining a copy of the order sought to be revised shall be excluded. It would be impermissible to read in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised of reviewed shall be excluded only if such copy has to be file alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of Judgment, when the legislature has not inserted such a proviso in section 12(2). It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revision petition12. Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respondent, and as such, it was not necessary for the respondent to apply for copy of the said orderIn this respect we find that the copy which was served upon the respondent was lost by him. The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner13. In the case of State of Uttar Pradesh v. Maharaj Narain & Ors. (6) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the Limitation Act, 1963.
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Mrs. A Vs. Union of India & Others
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1. Application for non-disclosure of name and details of the petitioner is allowed. 2. Petitioner - Mrs. A, aged 22 years, has approached this Court under Article 32 of the Constitution of India seeking directions to the respondents to allow her to undergo medical termination of her pregnancy. She apprehended danger to her life, having discovered that her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infants death during or shortly after birth. This condition is also known to endanger the mothers life. 3. By order dated 28.08.2017, while issuing notice to the respondents, this Court gave a direction for examination of the petitioner by a Medical Board consisting of the following Doctors of B.J. Govt. Medical College & Sassoon General Hospital, Pune, Maharashtra :1) Dr. Ajay Chandanwale, Dean BJGMC, Pune. 2) Dr. Pradip Sambarey, Professor & Head, Obstetrics and Gynecology, BJG MC Pune. 3) Dr. Nityanand Thakur, CVTS Department BJGMC Pune. 4) Dr. Aarti Kinikar, Professor & Head, Department of Pediatrics BJGMC Pune. 5) Dr. Shephali Pawar, Professor, Department of Radiology, BJGMC Pune. 4. The aforesaid Medical Board/Committee has examined the petitioner and stated that as on 30.08.2017, she was into her 25th to 26th week of pregnancy. She was accompanied by her husband and they are aware of the anomaly in fetus and chances of survival of the baby if born alive. The salient features of the said report are as under :1) The antenatal ultrasonography of the petitioner reveals that a single live intra uterine foetus of 26 weeks +/- 7 to 10 days. There is complete absence of fetal brain and skull vault suggestive of anencephaly. 2) The Cardiothoracic Surgeon has reported that the fetus has anencephaly and polyhydramnious. He further stated that this anomaly is not compatible with life. 3) The Paediatrician has reported that the survival rate post delivery is less than 10 to 20%. He further stated that majority of those who may survive, have serious form of morbidity and succumb within 24 to 48 hours of birth. 4) The Medical Board/Committee has reported that there is no treatment for anencephaly and there are possibilities of maternal complications like polyhydromnias. 5. We have been informed that the fetus is without a skull and would, therefore, not be in a position to survive. It is also submitted that the petitioner understands that her fetus is abnormal and the risk of fetal mortality is high. She also has the support of her husband in her decision making. 6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull. 7. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioners life is involved if she is allowed to undergo termination of her pregnancy. 8. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. Mr. Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed the petitioners prayer on any ground, legal or medical. We order accordingly. 9. The termination of pregnancy of the petitioner will be performed by the Doctors of the hospital where she has undergone medical check-up. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on the petitioner for termination of her pregnancy.
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1[ds]5. We have been informed that the fetus is without a skull and would, therefore, not be in a position to survive. It is also submitted that the petitioner understands that her fetus is abnormal and the risk of fetal mortality is high. She also has the support of her husband in her decision making6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull7. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioners life is involved if she is allowed to undergo termination of her pregnancy8. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. Mr. Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed the petitioners prayer on any ground, legal or medical. We order accordingly9. The termination of pregnancy of the petitioner will be performed by the Doctors of the hospital where she has undergone medical. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on the petitioner for termination of her pregnancy.
| 1 | 732 | 301 |
### 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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1. Application for non-disclosure of name and details of the petitioner is allowed. 2. Petitioner - Mrs. A, aged 22 years, has approached this Court under Article 32 of the Constitution of India seeking directions to the respondents to allow her to undergo medical termination of her pregnancy. She apprehended danger to her life, having discovered that her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infants death during or shortly after birth. This condition is also known to endanger the mothers life. 3. By order dated 28.08.2017, while issuing notice to the respondents, this Court gave a direction for examination of the petitioner by a Medical Board consisting of the following Doctors of B.J. Govt. Medical College & Sassoon General Hospital, Pune, Maharashtra :1) Dr. Ajay Chandanwale, Dean BJGMC, Pune. 2) Dr. Pradip Sambarey, Professor & Head, Obstetrics and Gynecology, BJG MC Pune. 3) Dr. Nityanand Thakur, CVTS Department BJGMC Pune. 4) Dr. Aarti Kinikar, Professor & Head, Department of Pediatrics BJGMC Pune. 5) Dr. Shephali Pawar, Professor, Department of Radiology, BJGMC Pune. 4. The aforesaid Medical Board/Committee has examined the petitioner and stated that as on 30.08.2017, she was into her 25th to 26th week of pregnancy. She was accompanied by her husband and they are aware of the anomaly in fetus and chances of survival of the baby if born alive. The salient features of the said report are as under :1) The antenatal ultrasonography of the petitioner reveals that a single live intra uterine foetus of 26 weeks +/- 7 to 10 days. There is complete absence of fetal brain and skull vault suggestive of anencephaly. 2) The Cardiothoracic Surgeon has reported that the fetus has anencephaly and polyhydramnious. He further stated that this anomaly is not compatible with life. 3) The Paediatrician has reported that the survival rate post delivery is less than 10 to 20%. He further stated that majority of those who may survive, have serious form of morbidity and succumb within 24 to 48 hours of birth. 4) The Medical Board/Committee has reported that there is no treatment for anencephaly and there are possibilities of maternal complications like polyhydromnias. 5. We have been informed that the fetus is without a skull and would, therefore, not be in a position to survive. It is also submitted that the petitioner understands that her fetus is abnormal and the risk of fetal mortality is high. She also has the support of her husband in her decision making. 6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull. 7. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioners life is involved if she is allowed to undergo termination of her pregnancy. 8. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. Mr. Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed the petitioners prayer on any ground, legal or medical. We order accordingly. 9. The termination of pregnancy of the petitioner will be performed by the Doctors of the hospital where she has undergone medical check-up. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on the petitioner for termination of her pregnancy.
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5. We have been informed that the fetus is without a skull and would, therefore, not be in a position to survive. It is also submitted that the petitioner understands that her fetus is abnormal and the risk of fetal mortality is high. She also has the support of her husband in her decision making6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull7. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioners life is involved if she is allowed to undergo termination of her pregnancy8. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. Mr. Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed the petitioners prayer on any ground, legal or medical. We order accordingly9. The termination of pregnancy of the petitioner will be performed by the Doctors of the hospital where she has undergone medical. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on the petitioner for termination of her pregnancy.
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MANAGEMENT HINDUSTAN MACHINE TOOLS LTD Vs. GHANSHYAM SHARMA
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Abhay Manohar Sapre, J. 1. This appeal is filed against the final judgment and order dated 18.12.2007 passed by the High Court of Judicature of Rajasthan in D.B. Civil Special Appeal (Writ) No.1417 of 1997 whereby the High Court allowed the appeal filed by the respondent. 2. Facts of the case lie in a narrow compass. They are stated infra. 3. The appellant is a Government company engaged in manufacture of certain items.It is now declared as a sick company. 4. The respondent (workman) claimed that he worked with the appellant Company as a casual helper in its manufacturing plant from 10.06.1976 to 30.07.1977. He complained that by an oral order; the appellant on 31.07.1977 terminated his services and, therefore, since 31.07.1977 he is no longer in the employment of the appellant. 5. The termination of the respondent, therefore, gave rise to the industrial dispute between the parties. The State, on the prayer made by the respondent (workman), referred the dispute under Section 10 of the Industrial Disputes Act (for short ?the Act?) to the Labour Court, Jaipur on 03.11.1983, for its adjudication. 6.The parties contested the Reference on merits before the Labour Court. By award dated 21.09.1988, the Labour Court answered the Reference in respondents favour. 7. It was held that termination of the respondent was not legal and proper and, therefore, it was liable to be set aside. It was accordingly set aside.It was also held that the respondent be reinstated in service by the appellant and he be given continuity in service, also. 8. The appellant (employer-company) felt aggrieved and filed writ petition in the High Court. By an order dated 17.09.1997, the High Court (Single Judge) allowed the writ petition and set aside the award of the Labour Court. 9. The respondent (employee) felt aggrieved and filed intra court appeal before the Division Bench. By impugned order, the Division Bench allowed the appeal, set aside the order of the learned Single Judge and restored the award of the Labour Court which has given rise to filing of this special leave to appeal by the Employer in this court. 10. Heard Shri Sushil Kumar Jain, learned senior counsel for the appellant. None appeared for the respondent though served. 11. So the short question, which arises for consideration in this appeal, is whether the Division Bench was justified in allowing the respondents appeal and was, therefore, justified in restoring the award of the Labour Court. 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appeal deserves to be partly allowed by modifying the award of the Labour Court to the extent indicated infra. 13. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was casual. 14. In a case of this nature, and having regard to the fact that many decades had passed in between with no evidence adduced by the respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with payment of back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential benefits. 15. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensation to the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of cases. (See- Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal Assistant Engineer Rajasthan Development Corporation vs Gitam Singh (2010) 6 SCC 773 and Assistant Engineer, Rajasthan Development Corporation & Ors. vs. Gitam Singh (2013) 5 SCC 136 ).
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1[ds]12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appealdeserves to be partly allowed by modifying the award of the Labour Court to the extent indicated. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was. In a case of this nature, and having regard tothe fact that many decadeshad passed in between with no evidence adduced bythe respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with paymentof back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensationto the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of
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### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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Abhay Manohar Sapre, J. 1. This appeal is filed against the final judgment and order dated 18.12.2007 passed by the High Court of Judicature of Rajasthan in D.B. Civil Special Appeal (Writ) No.1417 of 1997 whereby the High Court allowed the appeal filed by the respondent. 2. Facts of the case lie in a narrow compass. They are stated infra. 3. The appellant is a Government company engaged in manufacture of certain items.It is now declared as a sick company. 4. The respondent (workman) claimed that he worked with the appellant Company as a casual helper in its manufacturing plant from 10.06.1976 to 30.07.1977. He complained that by an oral order; the appellant on 31.07.1977 terminated his services and, therefore, since 31.07.1977 he is no longer in the employment of the appellant. 5. The termination of the respondent, therefore, gave rise to the industrial dispute between the parties. The State, on the prayer made by the respondent (workman), referred the dispute under Section 10 of the Industrial Disputes Act (for short ?the Act?) to the Labour Court, Jaipur on 03.11.1983, for its adjudication. 6.The parties contested the Reference on merits before the Labour Court. By award dated 21.09.1988, the Labour Court answered the Reference in respondents favour. 7. It was held that termination of the respondent was not legal and proper and, therefore, it was liable to be set aside. It was accordingly set aside.It was also held that the respondent be reinstated in service by the appellant and he be given continuity in service, also. 8. The appellant (employer-company) felt aggrieved and filed writ petition in the High Court. By an order dated 17.09.1997, the High Court (Single Judge) allowed the writ petition and set aside the award of the Labour Court. 9. The respondent (employee) felt aggrieved and filed intra court appeal before the Division Bench. By impugned order, the Division Bench allowed the appeal, set aside the order of the learned Single Judge and restored the award of the Labour Court which has given rise to filing of this special leave to appeal by the Employer in this court. 10. Heard Shri Sushil Kumar Jain, learned senior counsel for the appellant. None appeared for the respondent though served. 11. So the short question, which arises for consideration in this appeal, is whether the Division Bench was justified in allowing the respondents appeal and was, therefore, justified in restoring the award of the Labour Court. 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appeal deserves to be partly allowed by modifying the award of the Labour Court to the extent indicated infra. 13. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was casual. 14. In a case of this nature, and having regard to the fact that many decades had passed in between with no evidence adduced by the respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with payment of back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential benefits. 15. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensation to the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of cases. (See- Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal Assistant Engineer Rajasthan Development Corporation vs Gitam Singh (2010) 6 SCC 773 and Assistant Engineer, Rajasthan Development Corporation & Ors. vs. Gitam Singh (2013) 5 SCC 136 ).
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12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appealdeserves to be partly allowed by modifying the award of the Labour Court to the extent indicated. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was. In a case of this nature, and having regard tothe fact that many decadeshad passed in between with no evidence adduced bythe respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with paymentof back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensationto the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of
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Vasudev Ramchandra Shelat Vs. Pranlal Jayanand Thakar And Ors
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clearly decided in what circumstances the present, absolute, unconditional right to have the transfer registered to which Lord Selborne refers arises. It is thought that in many instances the test is that indicated by Jenkins J. in Re. Rose :I was referred on that to the well known case of Milroy v. Lord and also to the recent case of Re. Fry, Chase National Executors and Trustees Corpn. v Fry. Those cases, as I understand them, turn on the fact that the deceased donor had not done all in his power, according to the nature of the property given, to vest the legal interest in the property in the donee. In such circumstances it is, of course, well settled that there is no equity to complete the imperfect gift. If any act remained to be done by the donor to complete the gift at the date of the donors death the Court will not compel his personal representatives to do that act and the gift remains incomplete and fails.In Milroy v. Lord the imperfection was due to the fact that the wrong form of transfer was used for the purpose of transferring certain bank shares. The documents was not the appropriate document to pass any interest in the property at all. In Re. Fry the flaw in the transaction, which was a transfer or transfers of shares in a certain company, was failure to obtain the consent of the Treasury which in the circumstances surrounding the transfers in question was necessary under the Defence (Finance Regulations) Act, 1939, and, as appears from the headnote, what was held was that the donors executors ought not to execute confirmatory transfers. In this case, as I understand it, the testator had done everything in his power to divest himself of the shares in question to Mr. Hook. He had executed a transfer. It is not suggested that the transfer was not in accordance with the companys regulations. He had handed that transfer together with the certificates to Mr. Hook. There was nothing else the testator could do....Therefore, it seems to me that the present case is not in pari materia with the two cases to which I have been referred. The real position, in my judgment, is that the question here is one of construction of the will. The testator says if such preference shares have not been transferred to him previously to my death. The position was that, so far as the testator was concerned, they had been so transferred."23. Respondents learned Counsel also relied on Re. Fry. Chase National Executors and Trustees Corpn. Ltd. v Fry, (1946) 2 All ER 106, which has been referred to by Jenkins J. in the passage quoted above. In that case, apart from other distinguishing features, the flaw in the purported transfer was that it contravened the Defence (Finance Regulation) Act, 1939, which prohibited an acquisition of interest in the shares without a licence from the Treasury. Hence, the purported transfer was really illegal. No such illegality is shown to exist in the case before us.24. Respondents learned Counsel cited ILR 48 Cal 986 = )AIR 1921 Cal 148 ) (supra), where, after a husband had executed a document in favour of his wife, the parties had done nothing to get the transfer registered for nearly 2 years during which the dividend was received sometimes by the wife and sometimes retained by the husband with the permission or implied consent of the wife. The Court held that the purported gift being an intended "transfer" only could not operate as a "declaration of trust". Another ground for the decision was that " the disposition of the shares failed as being an imperfect voluntary gift". Here the Calcutta High Court purported to follow Milroy v. Lord, (1862) 4 DE and J 264 and, Richards v. Delbridge, (1874) 18 Eq 11. No such facts are present in the case before us. Moreover, we seriously doubt the correctness of this decision of the Calcutta High Court. It seems to confict with the law declared in the cases cited by the appellant which we approve.25. Another case relied upon by the respondent was ILR (1957) Mad 1058 = (AIR 1957 Mad 702 ) (supra), where the Court refused to direct rectification of a register of members because the articles of association vested an absolute discretion in the company to recognise or refuse to recognise a transfer. The Companys consent to a transfer had been refused because the company did not accept the correctness of the form of transfer deeds. In other words, this was a case in which the provisions of articles of association stood in the way of rectification of the register. Such is not the case before us.26. The result is that we do not think that the respondent has made out a case for defeating the clearly expressed intentions of the donor coupled with the authority with which the donee was armed by reason of the signed blank transfer forms. We think that the implied authority was given with regard to a subject-matter in which Shelat had acquired an interest. On a correct interpretation of the gift deed and the other facts mentioned above, we are of opinion that the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question here of competing equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. This right could only be defeated by showing some obstacle which prevented it from arising or which could defeat its exercise. No such obstacle having been shown to us to exist, the rights of the donee appellant would prevail as against any legal rights which could have accrued to others if the donee had not already acquired the legal right which, as held by us above, had become vested in him.
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1[ds]We think Mr. S. T. Desai, learned Counsel for the appellant Shelat, rightly pointed out that every material finding on questions of fact, given in favour of the appellant, was upheld by the Division Bench.After indicating the terms of the gift deed, the Division Bench heldit is undoubtedly true that the deed of gift discloses a clear and unequivocal intention on the part of Bai Ruxmani that Vasudev should become the owner of these shares and he should for all future time enjoy the fruits thereof. It is aposition in law that unless the gift is completed as required by law, mere intention to make a gift cannot pass any title to the donee and does not make the donee the owner of the property gifted by the donor. The registered gift deed itself cannot create any transfer and so it was not competent to the donor to divest the title in her merely by the execution of the gift deed. She was required to execute the regular transfer deeds or instruments of transfer in favour of Vasudev Shelat and hand them over to the donee, Vasudev Shelat, together with thewent on to saycircumstances as they clearly emerge and the facts as found by the Courts below, go to show that the deed of gift was executed on March 6, 1948, and, at the same time, the relevantwere handed over by the donor to the donee; and, sometime between March 6, 1948, when the gift deed was executed, and April 18, 1948, when Bai Ruxmani died , blank transfer forms signed by Bai Ruxmani were handed over by Bai Ruxmani to Vasudev Shelat, the donee.We think that questions to be really decided in the case before us have tended to become needlessly clouded by references to statutory provisions and to doctrines or concepts which really operate in separate and distinct fields of their own. It is true that the relevant provisions of the Transfer of Property Act and the Companies Act must be interpreted harmoniously. But, this certainly does not mean that a provision of one Act could be nullified by any provision of the other Act. It means that the provisions of the two Acts should be read consistently with each other so far as it is reasonably possible to do so. We think that this end can be best achieved here by examining the object and theof each enactment and by viewing each relevant provision as a limb of an integrated whole meant to serve the underlying purposes. In this way, their separable spheres of operation will be clarified so as to avoid possibilities of conflict between them or any unnecessary overflow of what really appertains to one field into another.6. No doubt the Transfer of Property Act is not exhaustive. It does not deal with every kind of transfer of property which the law permits. Nor does it prescribe the mode for every legally recognised transfer. Nevertheless, it is an enactment meant for defining certain basic types of transfer and it lays down the requirements both of substances and of form for their legal recognition and effectiveness. Section 5 of this Act gives a wide connotation to "transfer of property". All that it requires is that the transferor must be living at the time of the transfer recognised by the Act. Section 6 of the Act lays down that "property of any kind may be transferred" subject to certain exceptions. Shares in a company are certainly a form of property. Section 28 ofthe Companies Act, 1913, says that they "shall be movable property, transferable in the manner provided by the article of the company". Both sides accept as correct the view of the Division Bench of the High Court that the shares are " goods" within the meaning of the Sale of Goods Act. The point which however, deserves to be noted here is that the wide definition of "property" in Section 6 of the Transfer of Property Act includes not merely shares as transferable, movable property but would cover, as a seperable form of property, a right to obtain shares which may be antecedent to the accrual of rights of aupon the grant of a share certificate in accordance with the articles of association of a company.Thus, we find that, in Baruchas case, 53 Ind App 92=(AIR 1926 PC 38) (supra), a distinction was made between "the title to get on the register", and "the full property in the shares in a Co". The first was held to have been acquired by mere delivery, with the required intention, of the shares certificate and a blank form signed by the transferor. The second is only obtained when the transferee, in exercise of his right to become a share holder gets his name on the register in place of the transferor. This antecedent right in the person to whom the share certificate is given with a signed blank transfer form under a transaction meant to confer a right or title upon him to become a share holder, is enforceable so long as no obstacle to it is shown to exist in any of the articles of association of a company or a person with a superior right or title, legal or equitable, does not appear to be there. We think that S. 6 of the Transfer of Property Act justifies such a splitting up of rights constituting "property" in shares just as it is well recognised that rights of ownership of a property may be split up into a right to the "corpus" and another to the "usufruct" of the property and then separately dealt with.In the case before us, the registered document was signed by the donor as "the giver" as well as by the donee, as the "the acceptor" of the gift and it is attested by six witnesses. In it the donor specified and gave particulars of the shares meant to be gifted and undertook to get the name of the donee put on to the registers of the companies concerned. The donor even said that she was, thenceforth, a trustee for the benefit of the donee with regard to the income she may get due to the fact that her name was still entered in the registers of the companies concerned as a shareholder. The donor delivered the registered gift deed together with the share certificates to the donee. We think that, on these facts, the donation of the right to get share certificates made out in the name of the donee became irrevocable by registration as well as by delivery. The donation of such a right, as a form of property, was shown to be complete so that nothing was left to be done so far as the vesting of such a right in the donee is concerned. The actual transfers in the registers of the companies concerned were to constitute mere enforcements of this right. They were necessary to enable the donee to exercise the rights of the shareholder. The mere fact that such transfers had to be recorded in accordance with the company law did not detract from the completeness of what was donated.11.We think the learned Counsel for the appellant rightly contended that, even in the absence of registration of the gift deed, the delivery of the documents mentioned above to the donee, with the clear intention to donate, would be enough to confer upon the donee a complete and irrevocable right, of the kind indicated above, in what is movable property. He relied upon : Kalyanasundaram Pillai v. Karuppa Mooppanar, 54 Ind App 89 = (AIR 1927 PC 42) : Venkatasubba Shrinivas Hedge v. Subba Rama ILR 52 Bom 313 = (AIR 1928 PC 86 ); Firm Sawam Mal Gopi Chand v. Shiv Charan, AIR 1924 Lah 173.The requirements of form or mode of transfer are really intended to ensure that the substantial requirements of the transfer have been satisfied.They subserve an object. In the case before us, the requirements of both Section 122 and Section 123 of the Transfer of Property Act were completely met so as to vest the right in the donee to obtain the share certificates in accordance with the provisions of the Company law. We think that such a right is in itself "property" and separable from the technical legal ownership of the shares.The subsequent or "full rights of ownership" of shares would follow as a matter of course by compliance with the provisions of Company law.In other words, a transfer of "property" right in shares, recognised by the Transfer of Property Act, may be antecedent to the actual vesting of all or the full rights of ownership of shares and exercise of the rights of shareholders in accordance with the provisions of the Company law.We find from the gift deed that both the donor and the donee have signed the documents 5, under two headings respectively : " giver of the gift" and accepter of the gift." Hence, we think that the broadly indicated requirements of Regulation 18 were also complied with by the contents of the gift deed. It is immaterial that the gift deed deals with a number of items so long as the requirements of Regulation 18 are fulfilled. After all, the observance of a form, whether found in the Transfer of Property Act or in the Companies Act, is meant to serve the needs of the substances of the transaction which were undoubtedly shown to have been completely fulfilled here.There is nothing in Regulation 18 or anywhere else in our Company Law to indicate that, without strict compliance with some rigidly prescribed form, the transaction must fail to achieve its purpose. The subservience of substances of a transaction to some rigidly prescribed form required to be meticulously observed savours of archaic and outmodedstatement of the law in England is correct. The transferee, under a gift of shares, cannot function as a shareholder recognised by company law until his name is formally brought upon the register of a company and he obtains a share certificate as already indicated above. Indeed, there may be restrictions on transfers of shares either by gift or by sale in the articles of association. Thus, we find in Palmers Company Law (at p. 336)is nothing to limit the restrictions which a companys articles may place on the right of transfer. The articles may give the directors power to refuse to register a transfer in any specified cases, for instance where calls are in arrear, or where the company has a lien on the shares... and some such provisions are usually inserted. Thus Article 24 provides that the directors may decline to register any transfer of a share (not being a fully paid share) to a person of whom they do not approve, and may also decline to register any transfer of shares on which the company has a lien. But the articles in many cases go far beyond this. They may prohibit, for example, the transfer of a share to any person who is not a member of a specified class, or provide, as they often do in private companies, that before transferring to an outsider the intending transferor must first offer the shares to the other members, and give them a right of preemption. Such provisions, though permanent, do not contravene the rule againstthe type of cases contemplated above, where there are special restrictions on the transfer of shares imposed by the articles of association, the difficulty or defects is inherent in the character of such shares. In such cases, the donee or purchaser cannot get more than what the transferor possesses. Therefore, in such cases, it is possible to hold that even the right and title to obtain shares, which we have viewed as separable from the legal right and title to function as a shareholder, is incomplete because of a defect in the nature of shares held due to some special restrictions on their transferability under the articles of association of the company concerned. But, such is not shown to be the case at all with any of the shares which formed theof the gift in favour of Shelat. Hence, in our opinion, cases which deal with inchoate rights to shares do not assist the respondent because at least a gift of the right to obtain the transfer of shares in the books of the companies concerned was shown to be complete on the terms of the gift deed of Bai Ruxmani coupled with the handing over of the share certificates and the subsequent signing of the blank transfer forms. It was not a case of a bare expression of an intention to donate. The donor had done everything which she could reasonably be expected to do to divest herself of her rights in the sharesthat case, apart from other distinguishing features, the flaw in the purported transfer was that it contravened the Defence (Finance Regulation) Act, 1939, which prohibited an acquisition of interest in the shares without a licence from the Treasury. Hence, the purported transfer was really illegal. No such illegality is shown to exist in the case beforeCourt held that the purported gift being an intended "transfer" only could not operate as a "declaration of trust". Another ground for the decision was that " the disposition of the shares failed as being an imperfect voluntary gift". Here the Calcutta High Court purported to follow Milroyv. Lord, (1862) 4 DE and J 264 and, Richards v. Delbridge, (1874) 18 EqNo such facts are present in the case before us. Moreover, we seriously doubt the correctness of this decision of the Calcutta High Court. It seems to confict with the law declared in the cases cited by the appellant which weCompanys consent to a transfer had been refused because the company did not accept the correctness of the form of transfer deeds. In other words, this was a case in which the provisions of articles of association stood in the way of rectification of the register. Such is not the case before us.26. The result is that we do not think that the respondent has made out a case for defeating the clearly expressed intentions of the donor coupled with the authority with which the donee was armed by reason of the signed blank transfer forms. We think that the implied authority was given with regard to ain which Shelat had acquired an interest. On a correct interpretation of the gift deed and the other facts mentioned above, we are of opinion that the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question here of competing equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. This right could only be defeated by showing some obstacle which prevented it from arising or which could defeat its exercise. No such obstacle having been shown to us to exist, the rights of the donee appellant would prevail as against any legal rights which could have accrued to others if the donee had not already acquired the legal right which, as held by us above, had become vested in him.
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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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clearly decided in what circumstances the present, absolute, unconditional right to have the transfer registered to which Lord Selborne refers arises. It is thought that in many instances the test is that indicated by Jenkins J. in Re. Rose :I was referred on that to the well known case of Milroy v. Lord and also to the recent case of Re. Fry, Chase National Executors and Trustees Corpn. v Fry. Those cases, as I understand them, turn on the fact that the deceased donor had not done all in his power, according to the nature of the property given, to vest the legal interest in the property in the donee. In such circumstances it is, of course, well settled that there is no equity to complete the imperfect gift. If any act remained to be done by the donor to complete the gift at the date of the donors death the Court will not compel his personal representatives to do that act and the gift remains incomplete and fails.In Milroy v. Lord the imperfection was due to the fact that the wrong form of transfer was used for the purpose of transferring certain bank shares. The documents was not the appropriate document to pass any interest in the property at all. In Re. Fry the flaw in the transaction, which was a transfer or transfers of shares in a certain company, was failure to obtain the consent of the Treasury which in the circumstances surrounding the transfers in question was necessary under the Defence (Finance Regulations) Act, 1939, and, as appears from the headnote, what was held was that the donors executors ought not to execute confirmatory transfers. In this case, as I understand it, the testator had done everything in his power to divest himself of the shares in question to Mr. Hook. He had executed a transfer. It is not suggested that the transfer was not in accordance with the companys regulations. He had handed that transfer together with the certificates to Mr. Hook. There was nothing else the testator could do....Therefore, it seems to me that the present case is not in pari materia with the two cases to which I have been referred. The real position, in my judgment, is that the question here is one of construction of the will. The testator says if such preference shares have not been transferred to him previously to my death. The position was that, so far as the testator was concerned, they had been so transferred."23. Respondents learned Counsel also relied on Re. Fry. Chase National Executors and Trustees Corpn. Ltd. v Fry, (1946) 2 All ER 106, which has been referred to by Jenkins J. in the passage quoted above. In that case, apart from other distinguishing features, the flaw in the purported transfer was that it contravened the Defence (Finance Regulation) Act, 1939, which prohibited an acquisition of interest in the shares without a licence from the Treasury. Hence, the purported transfer was really illegal. No such illegality is shown to exist in the case before us.24. Respondents learned Counsel cited ILR 48 Cal 986 = )AIR 1921 Cal 148 ) (supra), where, after a husband had executed a document in favour of his wife, the parties had done nothing to get the transfer registered for nearly 2 years during which the dividend was received sometimes by the wife and sometimes retained by the husband with the permission or implied consent of the wife. The Court held that the purported gift being an intended "transfer" only could not operate as a "declaration of trust". Another ground for the decision was that " the disposition of the shares failed as being an imperfect voluntary gift". Here the Calcutta High Court purported to follow Milroy v. Lord, (1862) 4 DE and J 264 and, Richards v. Delbridge, (1874) 18 Eq 11. No such facts are present in the case before us. Moreover, we seriously doubt the correctness of this decision of the Calcutta High Court. It seems to confict with the law declared in the cases cited by the appellant which we approve.25. Another case relied upon by the respondent was ILR (1957) Mad 1058 = (AIR 1957 Mad 702 ) (supra), where the Court refused to direct rectification of a register of members because the articles of association vested an absolute discretion in the company to recognise or refuse to recognise a transfer. The Companys consent to a transfer had been refused because the company did not accept the correctness of the form of transfer deeds. In other words, this was a case in which the provisions of articles of association stood in the way of rectification of the register. Such is not the case before us.26. The result is that we do not think that the respondent has made out a case for defeating the clearly expressed intentions of the donor coupled with the authority with which the donee was armed by reason of the signed blank transfer forms. We think that the implied authority was given with regard to a subject-matter in which Shelat had acquired an interest. On a correct interpretation of the gift deed and the other facts mentioned above, we are of opinion that the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question here of competing equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. This right could only be defeated by showing some obstacle which prevented it from arising or which could defeat its exercise. No such obstacle having been shown to us to exist, the rights of the donee appellant would prevail as against any legal rights which could have accrued to others if the donee had not already acquired the legal right which, as held by us above, had become vested in him.
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1
### Explanation:
Transfer of Property Act or in the Companies Act, is meant to serve the needs of the substances of the transaction which were undoubtedly shown to have been completely fulfilled here.There is nothing in Regulation 18 or anywhere else in our Company Law to indicate that, without strict compliance with some rigidly prescribed form, the transaction must fail to achieve its purpose. The subservience of substances of a transaction to some rigidly prescribed form required to be meticulously observed savours of archaic and outmodedstatement of the law in England is correct. The transferee, under a gift of shares, cannot function as a shareholder recognised by company law until his name is formally brought upon the register of a company and he obtains a share certificate as already indicated above. Indeed, there may be restrictions on transfers of shares either by gift or by sale in the articles of association. Thus, we find in Palmers Company Law (at p. 336)is nothing to limit the restrictions which a companys articles may place on the right of transfer. The articles may give the directors power to refuse to register a transfer in any specified cases, for instance where calls are in arrear, or where the company has a lien on the shares... and some such provisions are usually inserted. Thus Article 24 provides that the directors may decline to register any transfer of a share (not being a fully paid share) to a person of whom they do not approve, and may also decline to register any transfer of shares on which the company has a lien. But the articles in many cases go far beyond this. They may prohibit, for example, the transfer of a share to any person who is not a member of a specified class, or provide, as they often do in private companies, that before transferring to an outsider the intending transferor must first offer the shares to the other members, and give them a right of preemption. Such provisions, though permanent, do not contravene the rule againstthe type of cases contemplated above, where there are special restrictions on the transfer of shares imposed by the articles of association, the difficulty or defects is inherent in the character of such shares. In such cases, the donee or purchaser cannot get more than what the transferor possesses. Therefore, in such cases, it is possible to hold that even the right and title to obtain shares, which we have viewed as separable from the legal right and title to function as a shareholder, is incomplete because of a defect in the nature of shares held due to some special restrictions on their transferability under the articles of association of the company concerned. But, such is not shown to be the case at all with any of the shares which formed theof the gift in favour of Shelat. Hence, in our opinion, cases which deal with inchoate rights to shares do not assist the respondent because at least a gift of the right to obtain the transfer of shares in the books of the companies concerned was shown to be complete on the terms of the gift deed of Bai Ruxmani coupled with the handing over of the share certificates and the subsequent signing of the blank transfer forms. It was not a case of a bare expression of an intention to donate. The donor had done everything which she could reasonably be expected to do to divest herself of her rights in the sharesthat case, apart from other distinguishing features, the flaw in the purported transfer was that it contravened the Defence (Finance Regulation) Act, 1939, which prohibited an acquisition of interest in the shares without a licence from the Treasury. Hence, the purported transfer was really illegal. No such illegality is shown to exist in the case beforeCourt held that the purported gift being an intended "transfer" only could not operate as a "declaration of trust". Another ground for the decision was that " the disposition of the shares failed as being an imperfect voluntary gift". Here the Calcutta High Court purported to follow Milroyv. Lord, (1862) 4 DE and J 264 and, Richards v. Delbridge, (1874) 18 EqNo such facts are present in the case before us. Moreover, we seriously doubt the correctness of this decision of the Calcutta High Court. It seems to confict with the law declared in the cases cited by the appellant which weCompanys consent to a transfer had been refused because the company did not accept the correctness of the form of transfer deeds. In other words, this was a case in which the provisions of articles of association stood in the way of rectification of the register. Such is not the case before us.26. The result is that we do not think that the respondent has made out a case for defeating the clearly expressed intentions of the donor coupled with the authority with which the donee was armed by reason of the signed blank transfer forms. We think that the implied authority was given with regard to ain which Shelat had acquired an interest. On a correct interpretation of the gift deed and the other facts mentioned above, we are of opinion that the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question here of competing equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. This right could only be defeated by showing some obstacle which prevented it from arising or which could defeat its exercise. No such obstacle having been shown to us to exist, the rights of the donee appellant would prevail as against any legal rights which could have accrued to others if the donee had not already acquired the legal right which, as held by us above, had become vested in him.
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Krishna Bahadur Vs. M/S. Purna Theatre
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it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being Statutory right, however, may also be waived by his conduct. 11. In Bank of India and others etc. vs. O.P. Swarnakar and others etc. (2003) 2 SCC 721 ), it was noticed: "115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand." 12. It is neither in doubt nor in dispute that the provision of Section 25-F(b) is imperative in character. The provision postulates the fulfillment of the following three conditions: (i) One months notice in writing indicating the reasons for retrenchment or wages in lieu of such notice;(ii) Payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months; and(iii) Notice to the appropriate Government in the prescribed manner. 13. The requirement to comply with the provision of Section 25-F(b) has been held to be mandatory before retrenchment of a workman is given effect to. In the event of any contravention of the said mandatory requirement, the retrenchment would be rendered void ab initio. 14. In Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. vs. The Management (1980) 2 L.L.J. 124), whereupon reliance had been placed by the Division Bench, this Court held: "... That apart, if there be non-compliance with S. 25F, the law is plain that the retrenchment is bad.." 15. In that case, however, compensation had been computed on the basis of wages previously paid and not on the basis of the Wage Board Award. The retrenchment took place on 5.11.1986. No plea as regard non-payment of compensation calculated on the basis thereof was taken before the Tribunal. Even the award did not proceed on that basis. 16. The new plea based on the facts was not permitted to be raised by the High Court This Court noticed that the Wage Board Award was subsequent to the retrenchment; although it was applied retrospectively i.e. with effect from 1.4.1966. In that situation, it was observed: "... In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court, dismiss the appeal. But the 16 workmen, being eligible admittedly for the Wage scale, will be paid the difference for the period between 1.4.1966 to 5.11.1966". 17. We may furthermore notice that the learned Industrial Tribunal interfered with the retrenchment of the appellant not only on the ground of non-compliance of the provisions of Section 25-F(b) of the Industrial Disputes Act but also on the ground of the contravention of Rule 77-A of the West Bengal Industrial Disputes Rules, stating: "Moreover the company has not shown by means of a seniority lists the concerned workman was the junior most amongst the same category of workers. When there is such a controversy and when no such lists was maintained by the company although maintaining of such lists can be said to be a compulsory compliance of the rules framed under the Industrial Disputes Act on the part of the Company (Vide 77A of the West Bengal Industrial Disputes Rules) it must be held that the retrenchment was illegal. Mere evidence to show the seniority of the workman of a particular category is not enough to justify a retrenchment of a workman on the ground of surplus hand". 18. After a detailed reference to the evidence adduced on behalf of the Management, the Tribunal held: "I do not understand why the company keeps lacuna in observing the legal procedure provided by the rules framed under the statute to maintain peace and harmony. In the industry particularly which are very much formal and not at all difficult to be maintained and can be done with least effort. This has been very much necessary and essential in this case in its peculiar background when the concerned workman is going to be retrenched within a very short period after his reinstatement with full back wages and incidental benefits by virtue of an award by the Seventh Industrial Tribunal in an earlier reference Case No. 1647-I.R. / IR/11L-24/85 corresponding to Case No. VIII-152/86 after he was dismissed from service. The Company should have maintained the seniority lists as required under the rule to show from impartial attitude towards the workman in the category to which Krishna Bahadur belongs. That having not been done the action of the Company suffers from informative (sic for infirmities) and it deserves to be nullified." 19. It would appear from the judgment of the learned Single Judge dated 25.9.1996 in Writ Petition No. 1872 of 1996 that correctness or otherwise of the finding of the Industrial Tribunal as regard non-compliance of the provisions of Rule 77A of the West Bengal Industrial Disputes Rules had been questioned. The said contention must be held to have negatived by the learned Single Judge also keeping in view the provisions analogous to Explanation- V appended to Section 11 of the Code of Civil Procedure. The Division Bench of the High Court unfortunately did not address itself to the said question at all.20. For the reasons aforementioned the impugned judgment of the Division Bench cannot be upheld. It is set aside accordingly and the judgment of the learned Single Judge upholding the award passed by the Industrial Tribunal is restored. 21.
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1[ds]It is, therefore, evident that the question of a bona fide action on the part of the employer or waiver on the part of the appellant herein had not been raised. The respondent before the learned Single Judge was although very emphatic as regard compliance of requirements of Section 25-F(b) of the Industrial Disputes Act but no contention as regard the plea of waiver was raised. Even the question of substantial compliance or bonafide action on the part of the said respondent was notwould appear from the judgment of the learned Single Judge dated 25.9.1996 in Writ Petition No. 1872 of 1996 that correctness or otherwise of the finding of the Industrial Tribunal as regard non-compliance of the provisions of Rule 77A of the West Bengal Industrial Disputes Rules had been questioned. The said contention must be held to have negatived by the learned Single Judge also keeping in view the provisions analogous to Explanation- V appended to Section 11 of the Code of Civil Procedure. The Division Bench of the High Court unfortunately did not address itself to the said question at all.20. For the reasons aforementioned the impugned judgment of the Division Bench cannot be upheld. It is set aside accordingly and the judgment of the learned Single Judge upholding the award passed by the Industrial Tribunal is restored.
| 1 | 2,767 | 239 |
### 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:
it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being Statutory right, however, may also be waived by his conduct. 11. In Bank of India and others etc. vs. O.P. Swarnakar and others etc. (2003) 2 SCC 721 ), it was noticed: "115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand." 12. It is neither in doubt nor in dispute that the provision of Section 25-F(b) is imperative in character. The provision postulates the fulfillment of the following three conditions: (i) One months notice in writing indicating the reasons for retrenchment or wages in lieu of such notice;(ii) Payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months; and(iii) Notice to the appropriate Government in the prescribed manner. 13. The requirement to comply with the provision of Section 25-F(b) has been held to be mandatory before retrenchment of a workman is given effect to. In the event of any contravention of the said mandatory requirement, the retrenchment would be rendered void ab initio. 14. In Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. vs. The Management (1980) 2 L.L.J. 124), whereupon reliance had been placed by the Division Bench, this Court held: "... That apart, if there be non-compliance with S. 25F, the law is plain that the retrenchment is bad.." 15. In that case, however, compensation had been computed on the basis of wages previously paid and not on the basis of the Wage Board Award. The retrenchment took place on 5.11.1986. No plea as regard non-payment of compensation calculated on the basis thereof was taken before the Tribunal. Even the award did not proceed on that basis. 16. The new plea based on the facts was not permitted to be raised by the High Court This Court noticed that the Wage Board Award was subsequent to the retrenchment; although it was applied retrospectively i.e. with effect from 1.4.1966. In that situation, it was observed: "... In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court, dismiss the appeal. But the 16 workmen, being eligible admittedly for the Wage scale, will be paid the difference for the period between 1.4.1966 to 5.11.1966". 17. We may furthermore notice that the learned Industrial Tribunal interfered with the retrenchment of the appellant not only on the ground of non-compliance of the provisions of Section 25-F(b) of the Industrial Disputes Act but also on the ground of the contravention of Rule 77-A of the West Bengal Industrial Disputes Rules, stating: "Moreover the company has not shown by means of a seniority lists the concerned workman was the junior most amongst the same category of workers. When there is such a controversy and when no such lists was maintained by the company although maintaining of such lists can be said to be a compulsory compliance of the rules framed under the Industrial Disputes Act on the part of the Company (Vide 77A of the West Bengal Industrial Disputes Rules) it must be held that the retrenchment was illegal. Mere evidence to show the seniority of the workman of a particular category is not enough to justify a retrenchment of a workman on the ground of surplus hand". 18. After a detailed reference to the evidence adduced on behalf of the Management, the Tribunal held: "I do not understand why the company keeps lacuna in observing the legal procedure provided by the rules framed under the statute to maintain peace and harmony. In the industry particularly which are very much formal and not at all difficult to be maintained and can be done with least effort. This has been very much necessary and essential in this case in its peculiar background when the concerned workman is going to be retrenched within a very short period after his reinstatement with full back wages and incidental benefits by virtue of an award by the Seventh Industrial Tribunal in an earlier reference Case No. 1647-I.R. / IR/11L-24/85 corresponding to Case No. VIII-152/86 after he was dismissed from service. The Company should have maintained the seniority lists as required under the rule to show from impartial attitude towards the workman in the category to which Krishna Bahadur belongs. That having not been done the action of the Company suffers from informative (sic for infirmities) and it deserves to be nullified." 19. It would appear from the judgment of the learned Single Judge dated 25.9.1996 in Writ Petition No. 1872 of 1996 that correctness or otherwise of the finding of the Industrial Tribunal as regard non-compliance of the provisions of Rule 77A of the West Bengal Industrial Disputes Rules had been questioned. The said contention must be held to have negatived by the learned Single Judge also keeping in view the provisions analogous to Explanation- V appended to Section 11 of the Code of Civil Procedure. The Division Bench of the High Court unfortunately did not address itself to the said question at all.20. For the reasons aforementioned the impugned judgment of the Division Bench cannot be upheld. It is set aside accordingly and the judgment of the learned Single Judge upholding the award passed by the Industrial Tribunal is restored. 21.
### Response:
1
### Explanation:
It is, therefore, evident that the question of a bona fide action on the part of the employer or waiver on the part of the appellant herein had not been raised. The respondent before the learned Single Judge was although very emphatic as regard compliance of requirements of Section 25-F(b) of the Industrial Disputes Act but no contention as regard the plea of waiver was raised. Even the question of substantial compliance or bonafide action on the part of the said respondent was notwould appear from the judgment of the learned Single Judge dated 25.9.1996 in Writ Petition No. 1872 of 1996 that correctness or otherwise of the finding of the Industrial Tribunal as regard non-compliance of the provisions of Rule 77A of the West Bengal Industrial Disputes Rules had been questioned. The said contention must be held to have negatived by the learned Single Judge also keeping in view the provisions analogous to Explanation- V appended to Section 11 of the Code of Civil Procedure. The Division Bench of the High Court unfortunately did not address itself to the said question at all.20. For the reasons aforementioned the impugned judgment of the Division Bench cannot be upheld. It is set aside accordingly and the judgment of the learned Single Judge upholding the award passed by the Industrial Tribunal is restored.
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R. Mcdill and Company Private Limited Vs. Gouri Shankar Sarda and Others
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not be regarded as falling within Section 86, Code of Civil Procedure. In the case before us as already mentioned above a suit by presenting a plaint was instituted by respondent 1 and thereafter it was sought to be stayed by submitting application under Section 34 of the Act. Thus we are clearly of the view that the above case of Usmanali v. Sagarmal 1965 (3) SCR 201 : 1965 AIR(SC) 1798) is clearly distinguishable and does not help the appellants in the case before us. It may be noted that Bachawat, J. who delivered the judgment in Usmanali Khan v. Sagarmal 1965 (3) SCR 201 : 1965 AIR(SC) 1798) has himself in his book on the Law of Arbitration under the heading "Applicability of Code of Civil Procedure to Court Proceeding" mentioned a number of decisions wherein provisions of Code of Civil Procedure have been held to apply to proceedings under the Act. We have already extracted the above passage from the book of Bachawat, J 11. In Hakam Singh v. Gammon (India) Ltd. 1971 (1) SCC 286 : 1971 AIR(SC) 740 : 1971 (3) SCR 314 ) it was held that the Code of Civil Procedure in its entirety applies to proceedings under the Arbitration Act by virtue of Section 41 of the later Act. The jurisdiction of the courts under the Arbitration Act to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By the terms of Section 20(a) of the Code of Civil Procedure read with Explanation II thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay. Thus in the above case dispute arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under Section 20 of the Indian Arbitration Act, 10 of 1940 that the agreement be filed and an order of reference be made to an arbitration or arbitrators appointed by the court to settle the dispute between the parties in respect of the construction works done by him. In order to determine the place of suing, it was held that Section 20 of the Code of Civil Procedure would govern the case 12. Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions of Order XXIII of the Code of Civil Procedure will not apply to the order passed by the High Court on February 25, 196613. We would, now, consider the scope and effect of the order dated February 25, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure. Admittedly, appellants 1 and 2 were defendants in the suit filed by respondent 1. A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act. Though the order dated February 25, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact the copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application. The said application was allowed to be withdrawn with liberty to make a fresh application. To our mind, the term a fresh application used in singular had no more significance that the fact that as both the appellants has submitted one joint application as such the liberty was given to make a fresh application. The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act. The intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act. The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two separate applications as there were two different agreements between appellants 1 and 2 and respondent 1. There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated February 25, 1966. Learned counsel for respondent 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit. So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non- maintainability of two applications before the High Court and would have contested the applications on merits. We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law. We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated February 25, 1966. In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by appellants 1 and 2 under Section 34 of the Act, at the earliest
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1[ds]12. Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions of Order XXIII of the Code of Civil Procedure will not apply to the order passed by the High Court on February 25, 196613. We would, now, consider the scope and effect of the order dated February 25, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure. Admittedly, appellants 1 and 2 were defendants in the suit filed by respondent 1. A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act. Though the order dated February 25, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact the copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application. The said application was allowed to be withdrawn with liberty to make a fresh application. To our mind, the term a fresh application used in singular had no more significance that the fact that as both the appellants has submitted one joint application as such the liberty was given to make a fresh application. The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act. The intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act. The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two separate applications as there were two different agreements between appellants 1 and 2 and respondent 1. There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated February 25, 1966. Learned counsel for respondent 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit. So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non- maintainability of two applications before the High Court and would have contested the applications on merits. We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law. We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated February 25, 1966. In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by appellants 1 and 2 under Section 34 of the Act, at the earliest
| 1 | 4,550 | 657 |
### 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:
not be regarded as falling within Section 86, Code of Civil Procedure. In the case before us as already mentioned above a suit by presenting a plaint was instituted by respondent 1 and thereafter it was sought to be stayed by submitting application under Section 34 of the Act. Thus we are clearly of the view that the above case of Usmanali v. Sagarmal 1965 (3) SCR 201 : 1965 AIR(SC) 1798) is clearly distinguishable and does not help the appellants in the case before us. It may be noted that Bachawat, J. who delivered the judgment in Usmanali Khan v. Sagarmal 1965 (3) SCR 201 : 1965 AIR(SC) 1798) has himself in his book on the Law of Arbitration under the heading "Applicability of Code of Civil Procedure to Court Proceeding" mentioned a number of decisions wherein provisions of Code of Civil Procedure have been held to apply to proceedings under the Act. We have already extracted the above passage from the book of Bachawat, J 11. In Hakam Singh v. Gammon (India) Ltd. 1971 (1) SCC 286 : 1971 AIR(SC) 740 : 1971 (3) SCR 314 ) it was held that the Code of Civil Procedure in its entirety applies to proceedings under the Arbitration Act by virtue of Section 41 of the later Act. The jurisdiction of the courts under the Arbitration Act to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By the terms of Section 20(a) of the Code of Civil Procedure read with Explanation II thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay. Thus in the above case dispute arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under Section 20 of the Indian Arbitration Act, 10 of 1940 that the agreement be filed and an order of reference be made to an arbitration or arbitrators appointed by the court to settle the dispute between the parties in respect of the construction works done by him. In order to determine the place of suing, it was held that Section 20 of the Code of Civil Procedure would govern the case 12. Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions of Order XXIII of the Code of Civil Procedure will not apply to the order passed by the High Court on February 25, 196613. We would, now, consider the scope and effect of the order dated February 25, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure. Admittedly, appellants 1 and 2 were defendants in the suit filed by respondent 1. A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act. Though the order dated February 25, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact the copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application. The said application was allowed to be withdrawn with liberty to make a fresh application. To our mind, the term a fresh application used in singular had no more significance that the fact that as both the appellants has submitted one joint application as such the liberty was given to make a fresh application. The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act. The intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act. The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two separate applications as there were two different agreements between appellants 1 and 2 and respondent 1. There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated February 25, 1966. Learned counsel for respondent 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit. So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non- maintainability of two applications before the High Court and would have contested the applications on merits. We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law. We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated February 25, 1966. In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by appellants 1 and 2 under Section 34 of the Act, at the earliest
### Response:
1
### Explanation:
12. Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions of Order XXIII of the Code of Civil Procedure will not apply to the order passed by the High Court on February 25, 196613. We would, now, consider the scope and effect of the order dated February 25, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure. Admittedly, appellants 1 and 2 were defendants in the suit filed by respondent 1. A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act. Though the order dated February 25, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact the copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application. The said application was allowed to be withdrawn with liberty to make a fresh application. To our mind, the term a fresh application used in singular had no more significance that the fact that as both the appellants has submitted one joint application as such the liberty was given to make a fresh application. The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act. The intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act. The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two separate applications as there were two different agreements between appellants 1 and 2 and respondent 1. There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated February 25, 1966. Learned counsel for respondent 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit. So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non- maintainability of two applications before the High Court and would have contested the applications on merits. We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law. We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated February 25, 1966. In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by appellants 1 and 2 under Section 34 of the Act, at the earliest
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M/S. Murlidhar Chiranjilal Vs. M/S. Harishchandra Dwarkadas And Another
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wheat at a fixed price. The contract provided that notice of appropriation to the contract of a specific cargo in a specific ship should be given within a specified time and also contained express provisions as to what should be done in various circumstances if the cargo should be re-sold one or more times before delivery. That was thus a case of a special type in which both buyers and seller knew at the time the contract was made that there was an even chance that the buyers could re-sell the cargo before delivery and not retain it themselves.11. The second case on which reliance was placed is Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., (1949) 1 All ER 997. That was a case of a boiler being sold to a laundry and it was held that damages for loss of profit were recoverable if it was apparent to the defendant as reasonable persons that the delay in delivery was liable to lead to such loss to the plaintiffs. These two cases exemplify that provision of S. 73 of the Contract Act, which provides that the measure of damages in certain circumstances may be what the parties knew when they made the contract to be likely to result from the breach of it. But they are cases of a special type; in one case the parties knew that goods purchased were likely to be re-sold before delivery and therefore any loss by the breach of contract eventually may include loss that may have been suffered by the buyers because of the failure to honour the intermediate contract of re-sale made by them; in the other the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result.12. The question is whether the present is a case like these two cases at all. It is urged on behalf of the respondent that the seller knew that the goods were to be sent to Calcutta; therefore it should be presumed to know that the goods would be sold in Calcutta and any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Now there is no dispute that the buyer had purchased canvas in this case for re-sale; but we cannot infer from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for re-sale in Calcutta only. As a matter of fact it cannot be denied that it was open to the buyer in this case to sell the railway receipt as soon as it was received in Kanpur and there can be no inference from the mere fact that the goods were to be sent to Calcutta that they were meant only for sale in Calcutta, it was open to the buyer to sell them anywhere it liked. Therefore this is not a case where it can be said that the parties knew when they made the contract that the goods were meant for sale in Calcutta alone and thus the difference between the price in Calcutta at the date of the breach and the contract price would be the measure of damages as the likely result from the breach. The contract was for delivery for Kanpur and was an ordinary contract in which it was open to the buyer to sell the goods where it liked.13. We may in this connection refer to the following observations in Chao v. British Traders and Shippers Ltd., 1954-1 All ER 779 at p. 797 which are apposite to the facts of the present case:"It is true that the defendants knew that the plaintiffs were merchants and therefore had bought for re-sale, but everyone who sells to a merchant knows that he has bought for re-sale, and it does not, as I understand it, make any difference to the ordinary measure of damages where there is a market. What is contemplated is that the merchant buys for re-sale, but, if the goods are not delivered to him, he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen he has not suffered any damage, if the market has risen the measure of damages is the difference in the market price."14. In these circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit Calcutta. This is a simple case of purchase of goods for re-sale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the date of breach. We are therefore of opinion that this is not a case of the special type to which the words "which the parties knew, when they made the contract, to be likely to result from the breach of it" appearing in S. 73 of the Contract Act apply. This is an ordinary case of contract between traders which is covered by the words "which naturally arose in the usual course of things from such breach" appearing in S. 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances.
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1[ds]We think it unnecessary to decide whether the contract had become impossible of performance, as we have come to the conclusion that the appeal must succeed on the other point raised on behalf of the appellant.The two principles on which damages in such cases are calculated are well-settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed; but this principle is qualified by a second, which imposes on a plaintiff the duly of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to is neglect to take suchtwo principles also follow from the law as laid down in S. 73 read with the Explanation thereof. If therefore the contract was to be performed at Kanpur it was the respondents duty to buy the goods in Kanpur and rail them to Calcutta on the date of the breach and if it suffered any damage thereby because of the rise in price on the date of the breach as compared to the contract price, it would be entitled to be re-imbursed for the loss. Even if the respondent did not actually buy them in the market at Kanpur on the date of breach it would be entitled to damages on proof of the rate for similar canvas prevalent in Kanpur on the date of breach, if that rate was above the contracted rate resulting in loss to it. But the respondent did not make any attempt to prove the rate for similar" canvas prevalent in Kanpur on the date of breach. Therefore it would obviously be not entitled to any damages at all, for on this state of the evidence it could not be said that any damage naturally arose in the usual course oftwo cases exemplify that provision of S. 73 of the Contract Act, which provides that the measure of damages in certain circumstances may be what the parties knew when they made the contract to be likely to result from the breach of it. But they are cases of a special type; in one case the parties knew that goods purchased were likely to be re-sold before delivery and therefore any loss by the breach of contract eventually may include loss that may have been suffered by the buyers because of the failure to honour the intermediate contract of re-sale made by them; in the other the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result.Now there is no dispute that the buyer had purchased canvas in this case for re-sale; but we cannot infer from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for re-sale in Calcutta only. As a matter of fact it cannot be denied that it was open to the buyer in this case to sell the railway receipt as soon as it was received in Kanpur and there can be no inference from the mere fact that the goods were to be sent to Calcutta that they were meant only for sale in Calcutta, it was open to the buyer to sell them anywhere it liked. Therefore this is not a case where it can be said that the parties knew when they made the contract that the goods were meant for sale in Calcutta alone and thus the difference between the price in Calcutta at the date of the breach and the contract price would be the measure of damages as the likely result from the breach. The contract was for delivery for Kanpur and was an ordinary contract in which it was open to the buyer to sell the goods where itthese circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit Calcutta. This is a simple case of purchase of goods for re-sale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the date of breach. We are therefore of opinion that this is not a case of the special type to which the words "which the parties knew, when they made the contract, to be likely to result from the breach of it" appearing in S. 73 of the Contract Act apply. This is an ordinary case of contract between traders which is covered by the words "which naturally arose in the usual course of things from such breach" appearing in S. 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances.
| 1 | 2,951 | 971 |
### 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:
wheat at a fixed price. The contract provided that notice of appropriation to the contract of a specific cargo in a specific ship should be given within a specified time and also contained express provisions as to what should be done in various circumstances if the cargo should be re-sold one or more times before delivery. That was thus a case of a special type in which both buyers and seller knew at the time the contract was made that there was an even chance that the buyers could re-sell the cargo before delivery and not retain it themselves.11. The second case on which reliance was placed is Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., (1949) 1 All ER 997. That was a case of a boiler being sold to a laundry and it was held that damages for loss of profit were recoverable if it was apparent to the defendant as reasonable persons that the delay in delivery was liable to lead to such loss to the plaintiffs. These two cases exemplify that provision of S. 73 of the Contract Act, which provides that the measure of damages in certain circumstances may be what the parties knew when they made the contract to be likely to result from the breach of it. But they are cases of a special type; in one case the parties knew that goods purchased were likely to be re-sold before delivery and therefore any loss by the breach of contract eventually may include loss that may have been suffered by the buyers because of the failure to honour the intermediate contract of re-sale made by them; in the other the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result.12. The question is whether the present is a case like these two cases at all. It is urged on behalf of the respondent that the seller knew that the goods were to be sent to Calcutta; therefore it should be presumed to know that the goods would be sold in Calcutta and any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Now there is no dispute that the buyer had purchased canvas in this case for re-sale; but we cannot infer from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for re-sale in Calcutta only. As a matter of fact it cannot be denied that it was open to the buyer in this case to sell the railway receipt as soon as it was received in Kanpur and there can be no inference from the mere fact that the goods were to be sent to Calcutta that they were meant only for sale in Calcutta, it was open to the buyer to sell them anywhere it liked. Therefore this is not a case where it can be said that the parties knew when they made the contract that the goods were meant for sale in Calcutta alone and thus the difference between the price in Calcutta at the date of the breach and the contract price would be the measure of damages as the likely result from the breach. The contract was for delivery for Kanpur and was an ordinary contract in which it was open to the buyer to sell the goods where it liked.13. We may in this connection refer to the following observations in Chao v. British Traders and Shippers Ltd., 1954-1 All ER 779 at p. 797 which are apposite to the facts of the present case:"It is true that the defendants knew that the plaintiffs were merchants and therefore had bought for re-sale, but everyone who sells to a merchant knows that he has bought for re-sale, and it does not, as I understand it, make any difference to the ordinary measure of damages where there is a market. What is contemplated is that the merchant buys for re-sale, but, if the goods are not delivered to him, he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen he has not suffered any damage, if the market has risen the measure of damages is the difference in the market price."14. In these circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit Calcutta. This is a simple case of purchase of goods for re-sale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the date of breach. We are therefore of opinion that this is not a case of the special type to which the words "which the parties knew, when they made the contract, to be likely to result from the breach of it" appearing in S. 73 of the Contract Act apply. This is an ordinary case of contract between traders which is covered by the words "which naturally arose in the usual course of things from such breach" appearing in S. 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances.
### Response:
1
### Explanation:
We think it unnecessary to decide whether the contract had become impossible of performance, as we have come to the conclusion that the appeal must succeed on the other point raised on behalf of the appellant.The two principles on which damages in such cases are calculated are well-settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed; but this principle is qualified by a second, which imposes on a plaintiff the duly of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to is neglect to take suchtwo principles also follow from the law as laid down in S. 73 read with the Explanation thereof. If therefore the contract was to be performed at Kanpur it was the respondents duty to buy the goods in Kanpur and rail them to Calcutta on the date of the breach and if it suffered any damage thereby because of the rise in price on the date of the breach as compared to the contract price, it would be entitled to be re-imbursed for the loss. Even if the respondent did not actually buy them in the market at Kanpur on the date of breach it would be entitled to damages on proof of the rate for similar canvas prevalent in Kanpur on the date of breach, if that rate was above the contracted rate resulting in loss to it. But the respondent did not make any attempt to prove the rate for similar" canvas prevalent in Kanpur on the date of breach. Therefore it would obviously be not entitled to any damages at all, for on this state of the evidence it could not be said that any damage naturally arose in the usual course oftwo cases exemplify that provision of S. 73 of the Contract Act, which provides that the measure of damages in certain circumstances may be what the parties knew when they made the contract to be likely to result from the breach of it. But they are cases of a special type; in one case the parties knew that goods purchased were likely to be re-sold before delivery and therefore any loss by the breach of contract eventually may include loss that may have been suffered by the buyers because of the failure to honour the intermediate contract of re-sale made by them; in the other the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result.Now there is no dispute that the buyer had purchased canvas in this case for re-sale; but we cannot infer from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for re-sale in Calcutta only. As a matter of fact it cannot be denied that it was open to the buyer in this case to sell the railway receipt as soon as it was received in Kanpur and there can be no inference from the mere fact that the goods were to be sent to Calcutta that they were meant only for sale in Calcutta, it was open to the buyer to sell them anywhere it liked. Therefore this is not a case where it can be said that the parties knew when they made the contract that the goods were meant for sale in Calcutta alone and thus the difference between the price in Calcutta at the date of the breach and the contract price would be the measure of damages as the likely result from the breach. The contract was for delivery for Kanpur and was an ordinary contract in which it was open to the buyer to sell the goods where itthese circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit Calcutta. This is a simple case of purchase of goods for re-sale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the date of breach. We are therefore of opinion that this is not a case of the special type to which the words "which the parties knew, when they made the contract, to be likely to result from the breach of it" appearing in S. 73 of the Contract Act apply. This is an ordinary case of contract between traders which is covered by the words "which naturally arose in the usual course of things from such breach" appearing in S. 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances.
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Orissa Lift Irrigation Corp. Ltd. & Others Vs. Rabi Sankar Patro & Others
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excellence, research and advancement in its chosen field for which such status was accorded. There is no embargo on such Deemed to be University in entering new areas of education or introducing new courses but in that case, it cant demand or receive complete relaxation from regulatory regime. It must satisfy all those requirements which a normal institution is required to. The stand taken by the UGC in the affidavit of Dr. Ved Prakash, as well as its submissions in our view, are correct and we reject the submission of Dr. Dhavan. The logical conclusion is that a Deemed to be University in the second category mentioned hereinabove is still an institution of the stature of a "technical institution" and if it desires to introduce new courses it must fulfill the requirements of 1994 AICTE Regulations. A Deemed to be University which has achieved excellence in a particular field may be given deferential treatment but nonetheless it has to satisfy the requirements for new technical institution. Pertinently, both JRN and IASE, while establishing their faculty or colleges in engineering at their main Campus sought approvals from AICTE. Further, even for introducing courses in management which come under the definition of technical education under the AICTE Act, appropriate permissions were sought from AICTE. We therefore conclude that the Deemed to be Universities in the present case were required to abide by the provisions of 1994 AICTE Regulations and could not introduce courses leading to award of degrees in Engineering without the approval of AICTE. 1994 AICTE Regulations or any subsequent Regulations will have to be understood in the light of our decision.44. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under sub- clause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction.45. It was laid down by this Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others, 2011(1) S.C.T. 258 : (2009) 4 SCC 590 that no relaxation could be granted in regard to the basic things necessary for conferment for a degree and if a mandatory provision is not complied with by an administrative authority, the action would be void. This leads us to conclude that the permissions granted by DEC in the first instance allowing the Deemed to be Universities in question to introduce courses leading to the award of degrees in engineering were illegal and opposed to Law. The illegality in the exercise of power was to such an extent that it could not be cured by ex post facto approvals granted later. We have also seen that the exercise of grant of ex post facto approvals, as a matter of fact, was only superficial and perfunctory. Such exercise was done in the face of declared policy statements governing the field and even when specific complaints were received about concerned Deemed to be Universities. Yet, without causing any inspection such power was exercised which part is already dealt with and the exercise of power has been found by us to be suffering from illegality and infirmity. The only thing in favour of the concerned Deemed to be Universities is the fact that the Joint Committee of UGC - AICTE - DEC had endorsed the decision though such exercise was also completely flawed. That exercise was against Para 10 of the MoU dated 10.05.2007, which contemplated causing of inspections and the decision dated 11.05.2007 of the Joint Committee itself that for an Institution/University to offer distance education programmes it was mandatory to offer the same in face to face mode.46. Having found the entire exercise of grant of ex-post-facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex-post-facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply for ex-post-facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 20012005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of said ex-post-facto approval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students.
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1[ds]12. The aforesaid chart shows that the "Deemed to be University" status was conferred keeping in view the potential to offer academic programs in specific domains of knowledge. For example institutions at serial Nos.1 and 2 in the aforesaid table had specialized in Social Work, Education, Arts and Commerce. However by virtue of their "Deemed to be University" status, these institutions thereafter started distance education programs in subjects or courses leading to award of B.E. and B.Tech degrees which were not within their field of specialization.We have referred to the notifications, circulars and guidelines as were in existence and in force in 2004. The Deemed to be Universities in the present case had started their distance education programmes without taking any prior approval from any of the authorities including UGC, AICTE or DEC. However, it appears that in terms of paragraphs 4 and 5 of 2004 UGC Guidelines, the advertisement of DEC dated 03.02.2004 and circular of UGC dated 16.03.2004, the concerned Deemed to be Universities soughtapproval for courses conducted by them through distance education mode.In the backdrop of aforesaid facts, the learned Amicus Curiae is right in his submission that thefacto approvals granted in the present matters were completely opposed to the policy statements governing the matters in issue. He is right that the concerned Deemed to be Universities admitted students, conducted courses and granted degrees in the absence of statutory approvals. It is, however, the submission of Dr. Rajeev Dhavan, learned Senior Advocate that a Deemed to be University is entitled to start new courses in technical education (including through distance education mode) in terms of law laid down by this Court in Bharathidasan (supra) and that there was no bar or prohibition in any statute or statutory instrument when the Deemed to be Universities started the instant courses in distance education mode. According to him, the inspections could of course be undertaken by UGC in terms of the Statute and if no inspections, as a matter of fact were conducted, the Deemed to be Universities could not be atis thus the sole repository of power to lay down parameters or qualitative norms for "technical education". What should be course content, what subjects be taught and what should be the length and duration of the courses as well as the manner in which those courses be conducted is a part of the larger concept of "technical education". Any idea or innovation in that field is also a part of the concept of "technical education" and must, as a matter of principle, be in the exclusive domain of AICTE.Technical education leading to the award of degrees in Engineering consists of imparting of lessons in theory as well as practicals. The practicals form the backbone of such education which isapproach involving actual application of principles taught in theory under the watchful eyes of Demonstrators or Lecturers. Face to face imparting of knowledge in theory classes is to be reinforced in practical classes. The practicals, thus, constitute an integral part of the technical education system. If this established concept of imparting technical education as a qualitative norm is to be modified or altered and in a given case to be substituted by distance education learning, then as a concept the AICTE ought to have accepted it in clear terms. What parameters ought to be satisfied if the regular course of imparting technical education is in any way to be modified or altered, is for AICTE alone to decide. The decision must be specific and unequivocal and cannot be inferred merely because of absence of any Guidelines in the matter. No such decision was ever expressed by AICTE. On the other hand, it has always maintained that courses leading to degrees in Engineering cannot be undertaken through distance education mode. Whether that approach is correct or not is not the point in issue. For the present purposes, if according to AICTE such courses ought not to be taught in distance education mode, that is the final word and is bindingunless rectified in a manner known to law. Even National Policy on Education while emphasizing the need to have a flexible, pattern and programmes through distance education learning in technical and managerial education, laid down in Para 6.19 that AICTE will be responsible for planning, formulation and maintenance of norms and standards including maintenance of parity of certification and ensuring coordinated and integrated development of technical and management education. In our view whether subjects leading to degrees in Engineering, could be taught in distance education mode or not is within the exclusive domain of the AICTE. The answer to the first limb of the first question posed by us is therefore clear that without the Guidelines having been issued in that behalf by AICTE expressly permitting degree courses in Engineering through distance education mode, the Deemed to be Universities were not justified in introducing suchare concerned in the present cases with the second category of Deemed to be Universities. In the present cases, none of the Deemed to be Universities was conferred such status for its excellence in the field of Engineering. Their fields were completelyAs a matter of fact, JRN and IASE did not even have regular college or faculty for Engineering at its main campus. And yet, they started courses in Engineering through distance education mode without the approval of AICTE, relying on the dictum in Bharathidasan. According to Dr. Rajeev Dhavan, learned Senior Advocate, they were entitled as a matter of right to start such courses.40. The affidavit of Dr. Ved Prakash as referred to hereinabove as well as the stand of UGC and the submissions made by Mr. Maninder Singh, learned Additional Solicitor General make it clear that such Deemed Universities in the second category mentioned above are not entitled, as a matter of right, to introduce courses leading to degrees in Engineering without the approval of AICTE. According to the submission of the learned Additional Solicitor General, the conferral of status is only because of excellence in a particular field or subject which then entitles the Deemed to be University to utilise its excellence to conduct research and achieve advancement in that field. However merely because such status was conferred on the concerned institution, in his submission, would not entitle it to similar protection in the second category cases, as available to a University by virtue of the decision of this Court in Bharathidasan (supra).41. Paras 1 and 2 of Bharathidasan (supra) show that the University constituted under the State law had its area of operation over three Districts of Tamil Nadu and by virtue of such State law could provide among other things, instructions and training in such branches of learning as it may determine. The express grant or empowerment thus came from the State enactment to enter into any field of learning as it may determine and introduce new courses in that behalf. However the University would be bound by territorial restrictions, in that it could not go beyond the territory of three Districts over which it was given Jurisdiction. But if we accept the submission of Dr. Rajeev Dhavan, learned Senior Advocate, there would be no such territorial restrictions on a Deemed University and it could open new departments, introduce new courses in any field anywhere in the Country. By way of illustration, we can consider the case of a private institution affiliated to a University such as Bharathidasan University, which after some length of time is conferred Deemed to be University status for excellence achieved by such private institution, say in the field of adult education. If we accept the submission of Dr. Dhavan, upon such conferral of Status as Deemed to be University, this originally affiliated private institution can now introduce any courses in technical education anywhere in the Country but the original University would be bound by territorial restriction.42. The grant or empowerment in Bharathidasan (supra) in favour of the University in question came from the State enactment which was its Charter. There is no such Charter or grant in favour of a Deemed to be University under any provision of the UGC Act. All that the UGC Act does is to confer Deemed to be University status on an Institution which has achieved excellence in its chosen field so that its development in the concerned field and its attempts to attain excellence and conduct research are not hampered on any count and at the same time it could be extended the facilities of Aid. It is precisely for this that the distinction between a regular University established under a Central Act, a Provincial Act or a State Act and an Institution Deemed to be University is maintained in the UGC Act. A Deemed to be University can certainly award degrees but cannot use the word "University" by virtue of Section 23 of the UGC Act. Even after conferral of such status it still continues to be "an Institution Deemed to be University" and if it is equated with a University in every sense of the term it would lead to incoherent and incongruous results, in that its area of operation or the field of its activity would be completely unlimited and unregulated. In our view that is certainly not the intent of the UGC Act.43. Conceptually there is some difference between the status of a University established under a State law and that of a Deemed to be University. Normally, a University is established with an idea that particular areas or districts of the State need to be catered to. Such University is expected to satisfy the needs or aspirations of people in the area for education and correspondingly empowered to initiate new courses, keeping in tune with the needs of time. The expectations from a Deemed to be University are of a different dimension. What is expected is excellence, research and advancement in its chosen field for which such status was accorded. There is no embargo on such Deemed to be University in entering new areas of education or introducing new courses but in that case, it cant demand or receive complete relaxation from regulatory regime. It must satisfy all those requirements which a normal institution is required to. The stand taken by the UGC in the affidavit of Dr. Ved Prakash, as well as its submissions in our view, are correct and we reject the submission of Dr. Dhavan. The logical conclusion is that a Deemed to be University in the second category mentioned hereinabove is still an institution of the stature of a "technical institution" and if it desires to introduce new courses it must fulfill the requirements of 1994 AICTE Regulations. A Deemed to be University which has achieved excellence in a particular field may be given deferential treatment but nonetheless it has to satisfy the requirements for new technical institution. Pertinently, both JRN and IASE, while establishing their faculty or colleges in engineering at their main Campus sought approvals from AICTE. Further, even for introducing courses in management which come under the definition of technical education under the AICTE Act, appropriate permissions were sought from AICTE. We therefore conclude that the Deemed to be Universities in the present case were required to abide by the provisions of 1994 AICTE Regulations and could not introduce courses leading to award of degrees in Engineering without the approval of AICTE. 1994 AICTE Regulations or any subsequent Regulations will have to be understood in the light of our decision.44. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under subclause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction.45. It was laid down by this Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others, 2011(1) S.C.T. 258 : (2009) 4 SCC 590 that no relaxation could be granted in regard to the basic things necessary for conferment for a degree and if a mandatory provision is not complied with by an administrative authority, the action would be void. This leads us to conclude that the permissions granted by DEC in the first instance allowing the Deemed to be Universities in question to introduce courses leading to the award of degrees in engineering were illegal and opposed to Law. The illegality in the exercise of power was to such an extent that it could not be cured by ex post facto approvals granted later. We have also seen that the exercise of grant of ex post facto approvals, as a matter of fact, was only superficial and perfunctory. Such exercise was done in the face of declared policy statements governing the field and even when specific complaints were received about concerned Deemed to be Universities. Yet, without causing any inspection such power was exercised which part is already dealt with and the exercise of power has been found by us to be suffering from illegality and infirmity. The only thing in favour of the concerned Deemed to be Universities is the fact that the Joint Committee of UGCDEC had endorsed the decision though such exercise was also completely flawed. That exercise was against Para 10 of the MoU dated 10.05.2007, which contemplated causing of inspections and the decision dated 11.05.2007 of the Joint Committee itself that for an Institution/University to offer distance education programmes it was mandatory to offer the same in face to face mode.46. Having found the entire exercise of grant ofapproval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside suchapprovals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply forapproval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 20012005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of saidapproval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students.The factual narration mentioned hereinabove makes certain things distinctly clear. The affidavit of Mr. Ved Prakash discloses how permissions were granted to introduce courses in the present cases without any authority. On one hand, the authorities were proclaiming their policy statements and on the other, despite there being complaints, they went about granting permissions. Their conduct and approach is difficult to explain on any rational basis and leaves much to be desired. We are, prima facie of the view that the conduct of the concerned officials needs to be looked into and investigated whether the exercise of power by them was completely genuine or colourable.The record further shows that time and again warnings were issued to the concerned Deemed to be Universities. Dr. Rajeev Dhavan, learned Senior Advocate is right in his submission that if a Deemed to be University is not to be found functioning within the limits, its recognition as Deemed to be University could be withdrawn. In our view, the concerned Deemed to be Universities had gone far beyond their limits and to say the least, had violated binding policy statements. Even when they did not have any experience in the concerned field and had no regular faculty or college in Engineering, they kept admitting students through distance education mode. When there was nothing at the core, the expansion was carried at the tertiary levels in brazen violation. The idea was not to achieve excellence in the field but the attempts appear to be guided by pure commercial angle.
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Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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excellence, research and advancement in its chosen field for which such status was accorded. There is no embargo on such Deemed to be University in entering new areas of education or introducing new courses but in that case, it cant demand or receive complete relaxation from regulatory regime. It must satisfy all those requirements which a normal institution is required to. The stand taken by the UGC in the affidavit of Dr. Ved Prakash, as well as its submissions in our view, are correct and we reject the submission of Dr. Dhavan. The logical conclusion is that a Deemed to be University in the second category mentioned hereinabove is still an institution of the stature of a "technical institution" and if it desires to introduce new courses it must fulfill the requirements of 1994 AICTE Regulations. A Deemed to be University which has achieved excellence in a particular field may be given deferential treatment but nonetheless it has to satisfy the requirements for new technical institution. Pertinently, both JRN and IASE, while establishing their faculty or colleges in engineering at their main Campus sought approvals from AICTE. Further, even for introducing courses in management which come under the definition of technical education under the AICTE Act, appropriate permissions were sought from AICTE. We therefore conclude that the Deemed to be Universities in the present case were required to abide by the provisions of 1994 AICTE Regulations and could not introduce courses leading to award of degrees in Engineering without the approval of AICTE. 1994 AICTE Regulations or any subsequent Regulations will have to be understood in the light of our decision.44. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under sub- clause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction.45. It was laid down by this Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others, 2011(1) S.C.T. 258 : (2009) 4 SCC 590 that no relaxation could be granted in regard to the basic things necessary for conferment for a degree and if a mandatory provision is not complied with by an administrative authority, the action would be void. This leads us to conclude that the permissions granted by DEC in the first instance allowing the Deemed to be Universities in question to introduce courses leading to the award of degrees in engineering were illegal and opposed to Law. The illegality in the exercise of power was to such an extent that it could not be cured by ex post facto approvals granted later. We have also seen that the exercise of grant of ex post facto approvals, as a matter of fact, was only superficial and perfunctory. Such exercise was done in the face of declared policy statements governing the field and even when specific complaints were received about concerned Deemed to be Universities. Yet, without causing any inspection such power was exercised which part is already dealt with and the exercise of power has been found by us to be suffering from illegality and infirmity. The only thing in favour of the concerned Deemed to be Universities is the fact that the Joint Committee of UGC - AICTE - DEC had endorsed the decision though such exercise was also completely flawed. That exercise was against Para 10 of the MoU dated 10.05.2007, which contemplated causing of inspections and the decision dated 11.05.2007 of the Joint Committee itself that for an Institution/University to offer distance education programmes it was mandatory to offer the same in face to face mode.46. Having found the entire exercise of grant of ex-post-facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex-post-facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply for ex-post-facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 20012005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of said ex-post-facto approval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students.
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introduce courses leading to award of degrees in Engineering without the approval of AICTE. 1994 AICTE Regulations or any subsequent Regulations will have to be understood in the light of our decision.44. Para 3 of the notification dated 22.11.1991 which constituted DEC shows that there was no representation for any Member or representative of AICTE. The provisions of IGNOU Act show that the Study Centres as defined in the IGNOU Act are that of IGNOU and not of any other University or Institution. The concept of distance education under subclause (v) of Section 5 is also in relation to the academic programmes of IGNOU. It undoubtedly has powers under Clauses (vii), (xiii) and (xxiii) to cooperate with other Universities but the IGNOU Act nowhere entitles IGNOU to be the Controlling Authority of the entire field of distance education of learning across the Country and in relation to programmes of other Universities or Institutions as well. The Order dated 29.12.2012 issued by MHRD therefore correctly appreciated that DEC created under statute 28 of IGNOU Act could not act as a regulator for other Universities. In any event of the matter, the policy Guidelines issued from time to time made it abundantly clear that DEC alone was not entitled to grant permission for open distance learning and appropriate permissions from the requisite authorities were always required and insisted upon. Despite such policy statements, DEC went on granting permissions without even consulting AICTE. Such exercise on part of DEC was completely without jurisdiction.45. It was laid down by this Court in Annamalai University v. Secretary to Government, Information and Tourism Department and Others, 2011(1) S.C.T. 258 : (2009) 4 SCC 590 that no relaxation could be granted in regard to the basic things necessary for conferment for a degree and if a mandatory provision is not complied with by an administrative authority, the action would be void. This leads us to conclude that the permissions granted by DEC in the first instance allowing the Deemed to be Universities in question to introduce courses leading to the award of degrees in engineering were illegal and opposed to Law. The illegality in the exercise of power was to such an extent that it could not be cured by ex post facto approvals granted later. We have also seen that the exercise of grant of ex post facto approvals, as a matter of fact, was only superficial and perfunctory. Such exercise was done in the face of declared policy statements governing the field and even when specific complaints were received about concerned Deemed to be Universities. Yet, without causing any inspection such power was exercised which part is already dealt with and the exercise of power has been found by us to be suffering from illegality and infirmity. The only thing in favour of the concerned Deemed to be Universities is the fact that the Joint Committee of UGCDEC had endorsed the decision though such exercise was also completely flawed. That exercise was against Para 10 of the MoU dated 10.05.2007, which contemplated causing of inspections and the decision dated 11.05.2007 of the Joint Committee itself that for an Institution/University to offer distance education programmes it was mandatory to offer the same in face to face mode.46. Having found the entire exercise of grant ofapproval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside suchapprovals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of Courses leading to award of degrees in Engineering. However, since 2004 UGC Guidelines themselves had given liberty to the concerned Deemed to be Universities to apply forapproval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 20012005 is protected. Though we cannot wish away the fact that the concerned Deemed to be Universities flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the over bearing interest of the concerned students persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of saidapproval. However, the fact remains that the facilities available at the concerned Study Centres were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the concerned students.The factual narration mentioned hereinabove makes certain things distinctly clear. The affidavit of Mr. Ved Prakash discloses how permissions were granted to introduce courses in the present cases without any authority. On one hand, the authorities were proclaiming their policy statements and on the other, despite there being complaints, they went about granting permissions. Their conduct and approach is difficult to explain on any rational basis and leaves much to be desired. We are, prima facie of the view that the conduct of the concerned officials needs to be looked into and investigated whether the exercise of power by them was completely genuine or colourable.The record further shows that time and again warnings were issued to the concerned Deemed to be Universities. Dr. Rajeev Dhavan, learned Senior Advocate is right in his submission that if a Deemed to be University is not to be found functioning within the limits, its recognition as Deemed to be University could be withdrawn. In our view, the concerned Deemed to be Universities had gone far beyond their limits and to say the least, had violated binding policy statements. Even when they did not have any experience in the concerned field and had no regular faculty or college in Engineering, they kept admitting students through distance education mode. When there was nothing at the core, the expansion was carried at the tertiary levels in brazen violation. The idea was not to achieve excellence in the field but the attempts appear to be guided by pure commercial angle.
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Tirath Singh Vs. Bachittar Singh And Others
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1935, and Art. 311 of the Constitution.They are exceptional cases, and do not furnish any safe or useful guidance in the interpretation of S. 99.9. The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.10. The fallacy in this argument is in thinking that notice to a person is requisite for making a recommendation under S. 99 (1)(a)(ii). S. 99 (1)(a)(ii) deals with two distinct matters naming person who are proved to have been guilty of corrupt and illegal practices, and recommending whether there should be any exemption in respect of the dis-qualifications mentioned in Ss.141 to 143 and the proviso, properly construed, requires notice only in the former case and not the latter.It will be noticed that while in cases falling within Ss. 139 and 140 the disqualification is automatic and immutable, in cases falling within Ss. 141 to 143 the Election Commission has power to grant exemption under S. 144 of the Act. It is to guide the Commission in exercising its powers under S. 144, that the Tribunal is directed in S. 99 (1)(a)(ii) to make any recommendations with reference thereto. The jurisdiction of the Tribunal in respect of this matter is purely advisory.There is nothing to prevent the Commission from taking up the question of exemption under S.144 suo motu, even though the Tribunal has made no recommendation. Indeed, there is nothing to prevent the person adversely affected from applying directly to the Commission for exemption. While, therefore, there is compelling reason why a person should have an opportunity of showing cause before he is named, there is none such when the question is one of recommendation. As we construe the proviso, it confers no right on any person, party or stranger, to be heard on the question whether he should be recommended for exemption from the dis-qualifications under Ss. 141 to 143.The provision for exemption in S. 99(1) (a)(d) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.11. Reliance was also placed by the appellant on the decision of the Election Tribunal Kesho Ram v. Hazura Singh, 8 Election L.R. 320 (B), wherein it was held by a majority that notice under the proviso to S. 99 should be given to the parties to the petition also. For the reason given above, we do not agree with the decision of the majority.12.Our conclusion is that while the persons to be named under section 99(1)(a) (ii) would include both parties to the petition as well as non-parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice should issue under the proviso will depend on whether the person had an opportunity to cross-examine witnesses who had given evidence against him and to adduce his own evidence.This conclusion is in accord with the law in England.Under S. 140 sub-cl. (1) Representation of the People Act, 1949, an election Court has to state in its report the names of all persons who are found guilty of corrupt and illegal practice but "in the case of some one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition", the Court has to issue notice to him give him an opportunity of being heard by himself, and calling evidence in his defence.It was suggested for the appellant that the law as enacted in S. 99 makes a deliberate departure from that under S. 140 (1) of the English Act. The difference in the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the matter, there was any intention to depart from the English law on the subject; nor is there any reason therefor.13. In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.
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0[ds]3. (1) On the first question, the complaint of the appellant is that in the election petition the allegations relating to bribery were vague and wanting in particulars and that the petition should accordingly have been dismissed under Ss. 83 and 85 of the Act; that the charge that was sought to be proved it the hearing was at variance with the charge as alleged in the petition, and that the Tribunal had erred in giving a finding of bribery on the basis not of the allegations in the petition but of the evidence adduced at the trial.It is contended for the appellant that in the petition there was no mention of the bargain on which the finding of bribery by the Tribunal was based, that the charge in the petition related only to the order dated 7-12-1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded. This is to put too technical and narrow a construction on the averments. The charge in the petition was not merely that the appellant had passed the order dated 7-12-1951 but that he had passed it with a view to induce the sweepers to vote for him.That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence thethe circumstances, the complaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance. It may be that the allegations in the petition are not as full as they might have been; but if the "appellant was really embarrassed by the vagueness of the charge it was open to him to have called for particulars; but he did not do so. At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded. But this is denied by the petitioner in his affidavit filed in the High Court dated 3-12-1953. Even apart from this, the witnesses on behalf of the petitioner gave evidence on his point on the 8th and l1th November, 15th and 16th December, 1952 and on the 2nd February, 1953. Then the appellant entered on his defence. On 26-2-1951 he examined R.W. 4, a member of the small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances under which the order came to be passed.Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings. The contention that is urged for him is that the petition should have been dismissed under section 83 for want of particulars. This was rightly rejected by the High Court as without force, and we are in agreement with it.6. It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in S. 79 (2) at the time when the bargain was made. But the allegation in the petition is clear that the order dated 7-12-1951 was made with a view "to induce the sweepers to vote for the appellant". The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to vote" for him. Far from there being any specific denial that the sweepers were electors, the reply of the appellant proceeds on the basis that they were entitled towas argued by the learned Attorney General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross-examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under Art. 311 to show cause against the action proposed to be taken against him. In a warrant case, the accused is not bound to cross-examine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they are entitled, to a second opportunity was based on the peculiar language of Ss. 240 (2), (3) Government of India Act, 1935, and Art. 311 of the Constitution.The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.
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Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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1935, and Art. 311 of the Constitution.They are exceptional cases, and do not furnish any safe or useful guidance in the interpretation of S. 99.9. The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.10. The fallacy in this argument is in thinking that notice to a person is requisite for making a recommendation under S. 99 (1)(a)(ii). S. 99 (1)(a)(ii) deals with two distinct matters naming person who are proved to have been guilty of corrupt and illegal practices, and recommending whether there should be any exemption in respect of the dis-qualifications mentioned in Ss.141 to 143 and the proviso, properly construed, requires notice only in the former case and not the latter.It will be noticed that while in cases falling within Ss. 139 and 140 the disqualification is automatic and immutable, in cases falling within Ss. 141 to 143 the Election Commission has power to grant exemption under S. 144 of the Act. It is to guide the Commission in exercising its powers under S. 144, that the Tribunal is directed in S. 99 (1)(a)(ii) to make any recommendations with reference thereto. The jurisdiction of the Tribunal in respect of this matter is purely advisory.There is nothing to prevent the Commission from taking up the question of exemption under S.144 suo motu, even though the Tribunal has made no recommendation. Indeed, there is nothing to prevent the person adversely affected from applying directly to the Commission for exemption. While, therefore, there is compelling reason why a person should have an opportunity of showing cause before he is named, there is none such when the question is one of recommendation. As we construe the proviso, it confers no right on any person, party or stranger, to be heard on the question whether he should be recommended for exemption from the dis-qualifications under Ss. 141 to 143.The provision for exemption in S. 99(1) (a)(d) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.11. Reliance was also placed by the appellant on the decision of the Election Tribunal Kesho Ram v. Hazura Singh, 8 Election L.R. 320 (B), wherein it was held by a majority that notice under the proviso to S. 99 should be given to the parties to the petition also. For the reason given above, we do not agree with the decision of the majority.12.Our conclusion is that while the persons to be named under section 99(1)(a) (ii) would include both parties to the petition as well as non-parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice should issue under the proviso will depend on whether the person had an opportunity to cross-examine witnesses who had given evidence against him and to adduce his own evidence.This conclusion is in accord with the law in England.Under S. 140 sub-cl. (1) Representation of the People Act, 1949, an election Court has to state in its report the names of all persons who are found guilty of corrupt and illegal practice but "in the case of some one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition", the Court has to issue notice to him give him an opportunity of being heard by himself, and calling evidence in his defence.It was suggested for the appellant that the law as enacted in S. 99 makes a deliberate departure from that under S. 140 (1) of the English Act. The difference in the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the matter, there was any intention to depart from the English law on the subject; nor is there any reason therefor.13. In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.
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7-12-1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded. This is to put too technical and narrow a construction on the averments. The charge in the petition was not merely that the appellant had passed the order dated 7-12-1951 but that he had passed it with a view to induce the sweepers to vote for him.That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence thethe circumstances, the complaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance. It may be that the allegations in the petition are not as full as they might have been; but if the "appellant was really embarrassed by the vagueness of the charge it was open to him to have called for particulars; but he did not do so. At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded. But this is denied by the petitioner in his affidavit filed in the High Court dated 3-12-1953. Even apart from this, the witnesses on behalf of the petitioner gave evidence on his point on the 8th and l1th November, 15th and 16th December, 1952 and on the 2nd February, 1953. Then the appellant entered on his defence. On 26-2-1951 he examined R.W. 4, a member of the small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances under which the order came to be passed.Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings. The contention that is urged for him is that the petition should have been dismissed under section 83 for want of particulars. This was rightly rejected by the High Court as without force, and we are in agreement with it.6. It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in S. 79 (2) at the time when the bargain was made. But the allegation in the petition is clear that the order dated 7-12-1951 was made with a view "to induce the sweepers to vote for the appellant". The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to vote" for him. Far from there being any specific denial that the sweepers were electors, the reply of the appellant proceeds on the basis that they were entitled towas argued by the learned Attorney General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross-examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under Art. 311 to show cause against the action proposed to be taken against him. In a warrant case, the accused is not bound to cross-examine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they are entitled, to a second opportunity was based on the peculiar language of Ss. 240 (2), (3) Government of India Act, 1935, and Art. 311 of the Constitution.The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.
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Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another
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has first to meet the requirements of the iron and steel industry. What is important to note is that these eighty seven new coke oven plants are not situated in or about coal mines though they are in the coal field area, as indeed they are bound to be.29. Shri Ashok Sen drew pointed attention to the earlier affidavit filed on behalf of Bharat Coking Coal Company and commented severally on the alleged contradictory reasons given therein for the exclusion of certain coke oven plants from the Coking Coal Mines (Nationalisation) Act. But, in the ultimate analysis, we are not really to concern ourselves with the hollowness or the self-condemnatory nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation. The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statement. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Courts is the only authentic voice which may echo (interpret) the Parliament. This the court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the court their understanding of what Parliament has said or intended to say or what they think was Parliaments object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government or because their (the Governments) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said. We have mentioned the facts as found by us and we do not think that there has been any infringement of the right guaranteed by Art. 14.In the Writ Petition filed by Sanjeev Coking Coal Company, a question has been raised about the identity of the coke oven plant, sought to be taken over. Item 9 of the Second Schedule to the Coking Coal Mines (Nationalisation) Act is as follows:-Sl. Name of t he coke Location of the Name &addressNo. oven plant coke oven plant of the owners ofthe coke ovenplantx xx xxx xxx9. New Sudamdih New Sudamdih Col- Sanjeev Coke Manu-liery, Post office facturing Company,Patherdih, Distt. Care of H. D.Dhanbad. Adjmera, PostOffice PatherdihDistrict Dhanbad.x xx xxx xxx30. The submission of the petitioner was that Item 9, which was the new Sudamdih Coke Oven Plant did not belong to the petitioners, but non-the-less they were wrongly shown as the owners. Taking advantage of the error, that is, the wrong description of the owner, the Central Government had take n over the coke oven plant belonging to them, though it was not the New Sudamdih coke oven plant at all. The submission of the petitioners would suggest that there were two coke oven plants-one belonging to the New Sudamdih mine and the other belonging to the Sanjeev Coking Coal Company and that as a result of the mixing up of the names of the plant and owner, the coke oven plant belonging to the petitioners has been taken over. The respondents have denied that there were two coke oven plants-one belonging to the owners of the mine and another belonging to the Sanjeev Coking Coal Company. It is submitted on behalf of the respondents that there was only one coke oven plant and that as it did not belong to the owners of the mine, it had to be included separately in the Second Schedule. If it was part of the mine or if it belonged to the owners of the mine, there was no need to include it separately in the Second Schedule. That there has never been any real doubt about the identity of the coke oven plant that was meant to be taken over and in fact taken over is clear from the very statements in the affidavit filed on behalf of the petitioners. In paragraph 19 of the petition, it is stated:"Your petitioners coke oven plant is included in the Second Schedule in Item No. 9 thereof."In paragraph 23, it is stated:"Your petitioner states that your petitioner has never been the owner of any coke oven plant by the name of New Sudamdih, the name of the coke oven plant of your petitioner is Sanjeev Coke Manufacturing Companys coke oven plant. Although the said coke oven plant is situated near New Sudamdih Colliery as every coke oven plant has got to be situated near a colliery, the address of the coke oven plant of your petitioner is not New Sudamdih Colliery. Your petitioner states that the name of your petitioners coke oven plant has been wrongly given in the second schedule to the said Act."We do not think there is any possible doubt about the identity of the coke oven plant shown as Item No. 9 in the second schedule to the Coking Coal Mines (Nationalisation) Act. It is the coke oven plant belonging to the Sanjeev Coking Coal Company.31. One point which was touched by Shri A. K. Sen, the learned counsel for Sunil Kumar Ray, was that in any event the coaltar plant of the petitioners did not vest in the Government, as a result of the Nationalisation Act. Shri Sen, however, conceded that the definition of coke oven plant was wide enough to include the coaltar plant. Therefore, he did not press the point.
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0[ds]If this be the correct interpretation of the constitutional provision s, as I think it is, the amended Article 31 C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really ann genuinely for giving effect to a Directive Principle, so that needlessly futile and time consuming controversy whether such law contravenes Article 14 or 19 isow the question is what should be the test for determining whether a law is enacted for giving effect to a Directive Principle. One thing is clear that a claim to that effect put forward by the State would have no meaning or value; it is the court which would have to determine the question. Again it is not enough that there may be some connection between a provision of the law and a Directive Principle. The connection has to be between the law and the Directive Principle and it must be a real and substantial connection. To determine whether a law satisfies this test, the court would have to examine the pith and substance, the true nature and character of the law as also its design and the subject matter dealt with by it together with its object and scope. If on such examination, the court finds that the dominant object of the law is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C. But if the court finds that the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance. One for accomplishing an unauthorised purpose-unauthorised in the sense of not being covered by any Directive Principle, such law would not have the protection of the amended Art. 31C.he point I wish to emphasize is that the amended Article 31C does not give protection to a law which has merely some remote or tenuous connection with a Directive Principle. What is necessary is that there must be a real and substantial connection and the dominant object of the law must be to give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim for protection under the amended Article 31C can be allowed.at pp.therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31 C only to those provisions. The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle, would depend, to a large extent, on how closely and integrally such provision is connected with the implementation of the Directive Principle. If the court finds that a particular provision is subsidiary or incidental or not essentially and integrally connected with the implementation o f the Directive Principle or is of such a nature that, though seemingly a part of the general design of the main provisions of the statute, its dominant object is to achieve an unauthorised purpose, it would not enjoy the protection of the amended Article 31(C) and would be liable to be struck down as invalid if it violates Article 14 or 19.While we broadly agree with much that has been said by Bhagwati J. in the extracts above quoted, we do not think that those observations really advance Mr. Sens contention. To accept the submission of Shri Sen that a law founded on discrimination is not entitled to the protection of Art. 31C, as such a law can never be said to be to further the Directive Principle affirmed in Art. 39(b), would indeed be, to use a hackneyed phrase, to put the cart before the horse. If the law made to further the Directive Principle is necessarily non-discriminatory or is based on a reasonable classification, then such law does not need any protection such as that afforded by Art. 31C. Such law would be valid on its own strength, with no aid from Art. 31C. To make it a condition precedent that a law seeking the haven of Art. 31C must be non-discriminatory or based on reasonable classification is to make Art. 31C meaningless. If Art. 14 is not offended, no one need give any immunity from an attack based on Art. 14. Bhagwati J. did not say anything to the contrary. On the order hand, it appears to us, he was at great pains to point out that the broad egalitarian principle of social and economic justice for all was implicit in every Directive Principle and, therefore, a law designed to promote a Directive Principles, even if it came into conflict with the formalistic and doctrinaire view of equality before the law, would most certainly advance the broader egalitarian principle and the desirable constitutional goal of social and economic justice for all. If the law was aimed at the broader egalitarianism of the Directive Principles, Art. 31C protected the law from needless, unending and rancorous debate on the question whether the law contravened Art. 14s concept of equality before the law. That is how we understand Bhagwati Js observations. Never for a moment did Bhagwati J. let in by another door the very controversy which was shut out by Art. 31C. Of course, the law seeking the immunity afforded by Art. 31 C must be a law directing the policy of the State towards securing a Directive Principle. Here, we are content to use the very words of Art. 31C, While we agree with Bhagwati, J. that the object of the law must be to give effect to the Directive Principle and that the connection with the Directive Principle must not be some remote or tenuous connection, we deliberately refrain from the use of the words real and substantial, dominant, basically and essentially necessary and closely and integrally connected lest anyone chase after t he meaning of these expressions, forgetting for the moment the words of the statute, as happened once when the words substantial and compelling reasons were used in connection with appeals against orders of acquittal and a whole body of literature grew up on what were substantial and compelling reasons. As we have already said, we agree with much that has been said by Bhagwati J. And what we have now said about the qualifying words is only to caution ourselves against adjectives getting the better of the noun. Adjectives are attractive forensic aids but in matters of interpretation they are diverting intruders. These observations have the full concurrence of Bhagwati J.19. We are firmly of the opinion th at where Art. 31C comes in Art. 14 goes out. There is no scope for bringing in Art. 14 by a side wind as it were, that is, by equating the rule of equality before the law of Art. 14 with the broad egalitarianism of Art. 39(b) or by treating the principle of Art. 14 as included in the principle of Art. 39(b). To insist on nexus between the law for which protection is claimed and the principle of Art. 39(b) is not to insist on fulfilment of the requirement of Art. 14. They are different concepts and in certain circumstances, may even run counter to each other. That is why the need for the immunity afforded by Art. 31C. Indeed there are bound to be innumerable cases where the narrower concept of equality before the law may frustrate the broader egalitarianism contemplated by Art. 39(b). To illustrate, a law which prescribes that every landholder must surrender twenty percent of his holding as well as a law which prescribes that no one shall hold land in excess of 20 acres, may both satisfy the ritual requirements of Art. 14. But clearly, the first would frustrate and the second would advance the broader egalitarian principle. We are, therefore, not prepared to accept the submission of Shri Sen, that any law seeking the protection of Art. 31C must not be a law founded on discrimination.The nationalisation of the coking coal mines and the coke oven plants was with a view to reorganising and reconstructing such mines and plants for the purpose of protecting, conserving and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the iron and steel industry and for matters connected therewith or incidental thereto. We do not entertain the slightest doubt that the nationalisation of the coking coal mines and the specified coke oven plants for the above purpose was towards securing that the ownership and control of the material resource of the community are so distributed as best to subserve the common good.We are unable to appreciate the submission of Shri Sen. The expression material resources of the community means all things which are capable of producing wealth for the community. There is no warrant for interpreting the expression in so narrow a fashion as suggested by Shri Sen and confine it to public owned material resources, and exclude private-owned material resources. The expression involves no dichotomy. The words must be understood in the context of the Constitutional goal of establishing a sovereign, socialist, secular, democratic republic. Though the word socialist was introduced into the Preamble by a late amendment of the Constitution, that socialism has always been the goal is evident from the Directive Principles of State Policy. The amendment was only to emphasise the urgency. Ownership, control an d distribution of national productive wealth for the benefit and use of the community and the rejection of a system of misuse of its resources for selfish ends is what socialism is about and the words and thought of Art. 39 (b) but echo the familiar language and philosophy of socialism as expounded generally by all socialistArt. 39 (b) refers to material resources of the community it does not refer only to resources owned by the community as a whole but it refers also to resources owned by individual members of the community. Resources of the community do not mean public resources only but include private resources as well. Nor do we understand the word "distribute" to be used in Art. 39 (b) in the limited sense in which Shri Sen wants us to say it is used, that is, in the sense only of retail distribution to individuals. It is used in a wider sense so as to take in all manner and method of distribution such as distribution between regions, distribution between industries, distribution between classes and distribution between public, private and joint sectors. The distribution envisaged by Art. 39(b) necessarily takes within its stride the transformation of wealth from private-ownership into public ownership and is not confined to that which is already public-owned.We hold that the expression `Material resources of the community is not confined to natural resources; it is not confined to resources owned by the public; it means and includes all resources, natural and man-made, public andare unable to see any force in this submission. The distribution between public, private and joint sectors and the extent and range of any scheme of nationalisation are essentially matters of State policy which are inherently in appropriate subjects for judicial review. Scales of justice are just not designed to weigh competing social and economic factors. In such matters legislative wisdom must prevail and judicial review mustobject of the Coking Coal Mines (Nationalisation) Act is to reorganize and reconstruct coking coal mines and coke oven plants for the purpose of protecting, conservi ng and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the Iron and Steel Industry and for matters connected therewith and incidental thereto. The requirements of the Iron and Steel Industry are recognized as `growing requirements and it is found necessary to protect, conserve and promote the scientific development of resources of coking coal so as to meet those growing requirements. The Act is contemplating the future. If the object of the Act is to provide for the future, we do not see what difference it makes if in the past or in the present, the hard coke produced by the nationalised cocking coal mines is diverted elsewhere than the Iron and Steel Industry. The requirements of the Iron any Steel Industry which are to be met by the nationalised coke oven plants are its growing requirements, that is to say, its future requirements. The design of nationalisation as it appears from the statute itself, including the preamble, is that the increasing future demands of the iron and steel industry are to be met by the nationalised coke oven plants and demands of other industry are to be met by the non-nationalised and new coke oven plants That the iron and steel industry is not now utilising the hard coke produced by the nationalised coke oven plants is not material since the industry is expected to expand, its requirements of hard coke are expected to grow and the nationalised coke oven plant s are to be harnessed and be in readiness to meet those requirements.26. In view of the foregoing discussion, we hold that the Coking Coal Mines (Nationalisation) Act, 1972 is a legislation for giving effect to the policy of the State towards securing the principle specified in Art. 39(b) of the Constitution and is, therefore, immune, under Art. 31(C), from attack on the ground that it offends the fundamental right guaranteed by Art. 14.27. But we do not also see that there is any merit in the attack based on Art. 14. The facts that we are able to gather from the several affidavits filed in the case are like this: In the beginning, that is, when the Coking Coal Mines (Nationalisation) Act was passed, there were in existence seventy five coke oven plants. Later, that is, after the Nationalisation Acts came into force, eighty seven new coke oven plants came into existence. Now, out of the original seventy five coke oven plants, forty six were part s or units of the coking coal mines which were nationalised by the Coking Coal Mines (Nationalisation) Act. Those forty six coke oven plants stood nationalised as parts or units of the Coking Coal Mines. Another coke oven plant which was in the same posit ion went out of the statutory nationalisation design by reason of the judgment of this Court in Bharat Coking Coal Company v. P.K. Agarwala and another, a judgment from which we have now retracted. We are told that the coke oven plant which was the subject matter of Bharat Coking Coal Company v. P.K. Agarwala has since been acquired by the Central Government by private treaty. Out of the remaining twenty six coke oven plants, twelve were identified as situated near nationalised Coking Coal Mines and so they were expressly specified in the 1972 Nationalisation Act and nationalised.Of the remaining fourteen, eleven were parts or units of non-coking Coal Mines and they too stood nationalised when non-coking coal Mines also were nationalised by the Coal Mines Nationalisation Act, 1973. That leaves out three pre- existing coke oven plants unaccounted. After the passing of the Nationalisation Acts, eighty seven new coke oven plants were allowed to come into existence. Thus, finally, we have three pre-existing and eighty seven new coke oven plants outside the nationalisation scheme.28. From the additional affidavit filed by P.R. Desai on behalf of Bharat Coking Coal Limited, it transpires that when the Coking Coal Mines (Nationalisation) Act, 1972 was passed, fourteen coke oven plants were left out as they were not situated in or about coking coal mines but they were expected to be nationalised when the coal mines in which they were located or to which they belonged were to be nationalised by the Coal Mines (Nationalisation) Act, 1973. In fact, eleven coke oven plants were so nationalised. But it was later discovered that three coke oven plants, Nichitpur Coke Oven Plant, Shri Gopinathpur Coke Oven Plant and Royal Tisra Coke Oven Plant did not belong to the owners of the collieries after which they were named and near which they were located. So they were not covered by the 1973 Nationalisation Act too. Quite obviously, legislation is now necessary to nationalise these three coke oven plants also. The process of nationalisation of the coal industry is, of course, not complete yet. Nationalisation of any industry or means of production may not be and need not be effected all at once. It may be achieved in stages. If in the process of nationalisation, some units are left out in the earlier stages, either because it is so planned or because of some mistake, we do not think we can possibly say that there has been a violation of Art. 14. Nor can we draw any inference of discrimination from the circumstance that subsequently eighty seven new coke even plants have been allowed to come up. Obviously, there is demand for hard coke from industries other than the iron and steel industry and, naturally, the state does not want to stifle those industries by making it difficult for them to obtain their requirements, especially since the production of the Nationalised Coke oven plants has first to meet the requirements of the iron and steel industry. What is important to note is that these eighty seven new coke oven plants are not situated in or about coal mines though they are in the coal field area, as indeed they are bound todo not think there is any possible doubt about the identity of the coke oven plant shown as Item No. 9 in the second schedule to the Coking Coal Mines (Nationalisation) Act. It is the coke oven plant belonging to the Sanjeev Coking Coal Company.
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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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has first to meet the requirements of the iron and steel industry. What is important to note is that these eighty seven new coke oven plants are not situated in or about coal mines though they are in the coal field area, as indeed they are bound to be.29. Shri Ashok Sen drew pointed attention to the earlier affidavit filed on behalf of Bharat Coking Coal Company and commented severally on the alleged contradictory reasons given therein for the exclusion of certain coke oven plants from the Coking Coal Mines (Nationalisation) Act. But, in the ultimate analysis, we are not really to concern ourselves with the hollowness or the self-condemnatory nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation. The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statement. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Courts is the only authentic voice which may echo (interpret) the Parliament. This the court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the court their understanding of what Parliament has said or intended to say or what they think was Parliaments object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government or because their (the Governments) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said. We have mentioned the facts as found by us and we do not think that there has been any infringement of the right guaranteed by Art. 14.In the Writ Petition filed by Sanjeev Coking Coal Company, a question has been raised about the identity of the coke oven plant, sought to be taken over. Item 9 of the Second Schedule to the Coking Coal Mines (Nationalisation) Act is as follows:-Sl. Name of t he coke Location of the Name &addressNo. oven plant coke oven plant of the owners ofthe coke ovenplantx xx xxx xxx9. New Sudamdih New Sudamdih Col- Sanjeev Coke Manu-liery, Post office facturing Company,Patherdih, Distt. Care of H. D.Dhanbad. Adjmera, PostOffice PatherdihDistrict Dhanbad.x xx xxx xxx30. The submission of the petitioner was that Item 9, which was the new Sudamdih Coke Oven Plant did not belong to the petitioners, but non-the-less they were wrongly shown as the owners. Taking advantage of the error, that is, the wrong description of the owner, the Central Government had take n over the coke oven plant belonging to them, though it was not the New Sudamdih coke oven plant at all. The submission of the petitioners would suggest that there were two coke oven plants-one belonging to the New Sudamdih mine and the other belonging to the Sanjeev Coking Coal Company and that as a result of the mixing up of the names of the plant and owner, the coke oven plant belonging to the petitioners has been taken over. The respondents have denied that there were two coke oven plants-one belonging to the owners of the mine and another belonging to the Sanjeev Coking Coal Company. It is submitted on behalf of the respondents that there was only one coke oven plant and that as it did not belong to the owners of the mine, it had to be included separately in the Second Schedule. If it was part of the mine or if it belonged to the owners of the mine, there was no need to include it separately in the Second Schedule. That there has never been any real doubt about the identity of the coke oven plant that was meant to be taken over and in fact taken over is clear from the very statements in the affidavit filed on behalf of the petitioners. In paragraph 19 of the petition, it is stated:"Your petitioners coke oven plant is included in the Second Schedule in Item No. 9 thereof."In paragraph 23, it is stated:"Your petitioner states that your petitioner has never been the owner of any coke oven plant by the name of New Sudamdih, the name of the coke oven plant of your petitioner is Sanjeev Coke Manufacturing Companys coke oven plant. Although the said coke oven plant is situated near New Sudamdih Colliery as every coke oven plant has got to be situated near a colliery, the address of the coke oven plant of your petitioner is not New Sudamdih Colliery. Your petitioner states that the name of your petitioners coke oven plant has been wrongly given in the second schedule to the said Act."We do not think there is any possible doubt about the identity of the coke oven plant shown as Item No. 9 in the second schedule to the Coking Coal Mines (Nationalisation) Act. It is the coke oven plant belonging to the Sanjeev Coking Coal Company.31. One point which was touched by Shri A. K. Sen, the learned counsel for Sunil Kumar Ray, was that in any event the coaltar plant of the petitioners did not vest in the Government, as a result of the Nationalisation Act. Shri Sen, however, conceded that the definition of coke oven plant was wide enough to include the coaltar plant. Therefore, he did not press the point.
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0
### Explanation:
recognized as `growing requirements and it is found necessary to protect, conserve and promote the scientific development of resources of coking coal so as to meet those growing requirements. The Act is contemplating the future. If the object of the Act is to provide for the future, we do not see what difference it makes if in the past or in the present, the hard coke produced by the nationalised cocking coal mines is diverted elsewhere than the Iron and Steel Industry. The requirements of the Iron any Steel Industry which are to be met by the nationalised coke oven plants are its growing requirements, that is to say, its future requirements. The design of nationalisation as it appears from the statute itself, including the preamble, is that the increasing future demands of the iron and steel industry are to be met by the nationalised coke oven plants and demands of other industry are to be met by the non-nationalised and new coke oven plants That the iron and steel industry is not now utilising the hard coke produced by the nationalised coke oven plants is not material since the industry is expected to expand, its requirements of hard coke are expected to grow and the nationalised coke oven plant s are to be harnessed and be in readiness to meet those requirements.26. In view of the foregoing discussion, we hold that the Coking Coal Mines (Nationalisation) Act, 1972 is a legislation for giving effect to the policy of the State towards securing the principle specified in Art. 39(b) of the Constitution and is, therefore, immune, under Art. 31(C), from attack on the ground that it offends the fundamental right guaranteed by Art. 14.27. But we do not also see that there is any merit in the attack based on Art. 14. The facts that we are able to gather from the several affidavits filed in the case are like this: In the beginning, that is, when the Coking Coal Mines (Nationalisation) Act was passed, there were in existence seventy five coke oven plants. Later, that is, after the Nationalisation Acts came into force, eighty seven new coke oven plants came into existence. Now, out of the original seventy five coke oven plants, forty six were part s or units of the coking coal mines which were nationalised by the Coking Coal Mines (Nationalisation) Act. Those forty six coke oven plants stood nationalised as parts or units of the Coking Coal Mines. Another coke oven plant which was in the same posit ion went out of the statutory nationalisation design by reason of the judgment of this Court in Bharat Coking Coal Company v. P.K. Agarwala and another, a judgment from which we have now retracted. We are told that the coke oven plant which was the subject matter of Bharat Coking Coal Company v. P.K. Agarwala has since been acquired by the Central Government by private treaty. Out of the remaining twenty six coke oven plants, twelve were identified as situated near nationalised Coking Coal Mines and so they were expressly specified in the 1972 Nationalisation Act and nationalised.Of the remaining fourteen, eleven were parts or units of non-coking Coal Mines and they too stood nationalised when non-coking coal Mines also were nationalised by the Coal Mines Nationalisation Act, 1973. That leaves out three pre- existing coke oven plants unaccounted. After the passing of the Nationalisation Acts, eighty seven new coke oven plants were allowed to come into existence. Thus, finally, we have three pre-existing and eighty seven new coke oven plants outside the nationalisation scheme.28. From the additional affidavit filed by P.R. Desai on behalf of Bharat Coking Coal Limited, it transpires that when the Coking Coal Mines (Nationalisation) Act, 1972 was passed, fourteen coke oven plants were left out as they were not situated in or about coking coal mines but they were expected to be nationalised when the coal mines in which they were located or to which they belonged were to be nationalised by the Coal Mines (Nationalisation) Act, 1973. In fact, eleven coke oven plants were so nationalised. But it was later discovered that three coke oven plants, Nichitpur Coke Oven Plant, Shri Gopinathpur Coke Oven Plant and Royal Tisra Coke Oven Plant did not belong to the owners of the collieries after which they were named and near which they were located. So they were not covered by the 1973 Nationalisation Act too. Quite obviously, legislation is now necessary to nationalise these three coke oven plants also. The process of nationalisation of the coal industry is, of course, not complete yet. Nationalisation of any industry or means of production may not be and need not be effected all at once. It may be achieved in stages. If in the process of nationalisation, some units are left out in the earlier stages, either because it is so planned or because of some mistake, we do not think we can possibly say that there has been a violation of Art. 14. Nor can we draw any inference of discrimination from the circumstance that subsequently eighty seven new coke even plants have been allowed to come up. Obviously, there is demand for hard coke from industries other than the iron and steel industry and, naturally, the state does not want to stifle those industries by making it difficult for them to obtain their requirements, especially since the production of the Nationalised Coke oven plants has first to meet the requirements of the iron and steel industry. What is important to note is that these eighty seven new coke oven plants are not situated in or about coal mines though they are in the coal field area, as indeed they are bound todo not think there is any possible doubt about the identity of the coke oven plant shown as Item No. 9 in the second schedule to the Coking Coal Mines (Nationalisation) Act. It is the coke oven plant belonging to the Sanjeev Coking Coal Company.
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The Tirunelveli Motor Bus Service Co Vs. The Commissioner of Income Tax, Madras
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Grover, J. 1. This is an appeal by certificate from a judgment of the Madras High Court answering the following question which had been referred to it under Section 66 (1) of the Indian Income-tax Act, 1922, hereinafter called the "Act" in the affirmative and against the assessee. "whether on the facts and in the circumstances of the case, the sum of Rs. 54,479 is assessable in the year 1957-58 under the provisions of Section 10 (2A) of the Income-tax Act of 1822?" The assessee is a private limited company. It runs a fleet of buses. For the assessment year 1950-51 the assessee returned an income of Rupees 14,555/-. The Income-tax Officer required the assessee to furnish various particulars and documents under Section 22 (4) of the Act. These were not furnished. Apart from committing a default under S. 22 (4) it committed a default under Sec. 23 (2). The Income-tax Officer made an assessment under Sec. 23 (4) estimating the assessees income at Rs. 1,80,000/-. On appeal to the Appellate Assistant Commissioner it was reduced to Rs. 1,30,000/-. 2. In the accounts relating to the assessment year 1950-51 the assessee had claimed a sum of Rs. 4,09786/- as establishment charges which included a sum of Rs. 71,949/- representing the annual bonus payable to the employees. This amount had actually not been paid but had been shown on the debit side. The assessee ran into financial difficulties and the bonus remained unpaid for some years. In the accounting year relevant to the assessment year 1957-58 with which we are now concerned a sum of Rs. 17,470/- was paid to the employees as bonus in full settlement and the balance of Rs. 54,479/- was credited to the profit and loss account. The Income-tax Officer treated the credit of Rs. 54,479 so made as income accruing in the year of account. The Appellate Tribunal while dealing with the appeal observed: "Regarding the second contention, in the return made by the assessee for 1950-51, the assessee claimed bonus to employees and thereafter arrived at the business income at Rs. 14,555. The assessment. however, was completed under Section 23 (4) having as a guide the earlier years assessment or a total income of about Rs. 130,000/-. No doubt in the assessment of 1949-50, there was a bonus claim too. From this feature alone, it is difficult to conclude that the Income-tax Officer had scrutinised the computation and had considered the bonus too in his estimate. Actually, in the manner the estimate has been made, it would appear that the book position had been given the go-by. Unless the department is able to identify any particular item of expense as having been already allowed as a deduction in an earlier assessment conclusively Sec. 10 (2A) is not available for recoupment. This contention too is accordingly accepted". The High Court did not agree with the above view of the Tribunal although It appears that it did not disagree with the conclusion of the Tribunal that the record did not contain any indication that the Income-tax Officer had made any allowance in respect of bonus for which provision had been made while making the assessment for the assessment year 1950-51. On that finding of the Tribunal it could hardly be regarded as established that either any allowance or deduction had been granted in respect of a trading liability of the assessment year 1950-51 or it had been proved that the assessee had obtained any benefit relating to such trading liability in the assessment year 1957-58 which would attract the provisions of S. 10 (2A) of the Act. That provision only applies when an allowance for deduction has been made in the assessment of any year in respect of any loss, expenditure or trading liability incurred by the assessee and subsequently during any previous year the assessee receives any amount in respect of such loss or expenditure or has obtained some benefit in respect of such trading liability by way of remission or cessation thereof in which event the amount received by him has to be deemed to be profits and gains. On the finding of the Tribunal the condition of Sec. 10 12A) could not be said to have been satisfied and the addition of Rs. 54 479 made by the Income-tax Officer in the assessment for the year 1957-58 was not justified. It is apparent that the question whether an allowance had been granted or a deduction made in respect of a trading liability had to be decided by referring to the order relating to the assessment year 1950-51 and it could not be determined by drawing inferences from what was done in respect of the assessment of an earlier year. 3. In our judgment the finding of fact of the Appellate Tribunal did not warrant the answer returned by the High Court which is hereby discharged. The answer would thus be in the negative and in favour of the assessee. The
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1[ds]The High Court did not agree with the above view of the Tribunalalthough It appears that it did not disagree with the conclusion of the Tribunal that the record did not contain any indication that thex Officer had made any allowance in respect of bonus for which provision had been made while making the assessment for the assessment year. On that finding of the Tribunal it could hardly be regarded as established that either any allowance or deduction had been granted in respect of a trading liability of the assessment year1 or it had been proved that the assessee had obtained any benefit relating to such trading liability in the assessment year8 which would attract the provisions of S. 10 (2A) of theAct.That provision only applies when an allowance for deduction has been made in the assessment of any year in respect of any loss, expenditure or trading liability incurred by the assessee and subsequently during any previous year the assessee receives any amount in respect of such loss or expenditure or has obtained some benefit in respect of such trading liability by way of remission or cessation thereof in which event the amount received by him has to be deemed to be profits and gains. On the finding of the Tribunal the condition of Sec. 10 12A) could not be said to have been satisfied and the addition of Rs. 54 479 made by thex Officer in the assessment for the year8 was not justified. It is apparent that the question whether an allowance had been granted or a deduction made in respect of a trading liability had to be decided by referring to the order relating to the assessment year1 and it could not be determined by drawing inferences from what was done in respect of the assessment of an earlier year3. In our judgment the finding of fact of the Appellate Tribunal did not warrant the answer returned by the High Court which is hereby. Theanswer would thus be in the negative and in favour of the
| 1 | 913 | 355 |
### 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:
Grover, J. 1. This is an appeal by certificate from a judgment of the Madras High Court answering the following question which had been referred to it under Section 66 (1) of the Indian Income-tax Act, 1922, hereinafter called the "Act" in the affirmative and against the assessee. "whether on the facts and in the circumstances of the case, the sum of Rs. 54,479 is assessable in the year 1957-58 under the provisions of Section 10 (2A) of the Income-tax Act of 1822?" The assessee is a private limited company. It runs a fleet of buses. For the assessment year 1950-51 the assessee returned an income of Rupees 14,555/-. The Income-tax Officer required the assessee to furnish various particulars and documents under Section 22 (4) of the Act. These were not furnished. Apart from committing a default under S. 22 (4) it committed a default under Sec. 23 (2). The Income-tax Officer made an assessment under Sec. 23 (4) estimating the assessees income at Rs. 1,80,000/-. On appeal to the Appellate Assistant Commissioner it was reduced to Rs. 1,30,000/-. 2. In the accounts relating to the assessment year 1950-51 the assessee had claimed a sum of Rs. 4,09786/- as establishment charges which included a sum of Rs. 71,949/- representing the annual bonus payable to the employees. This amount had actually not been paid but had been shown on the debit side. The assessee ran into financial difficulties and the bonus remained unpaid for some years. In the accounting year relevant to the assessment year 1957-58 with which we are now concerned a sum of Rs. 17,470/- was paid to the employees as bonus in full settlement and the balance of Rs. 54,479/- was credited to the profit and loss account. The Income-tax Officer treated the credit of Rs. 54,479 so made as income accruing in the year of account. The Appellate Tribunal while dealing with the appeal observed: "Regarding the second contention, in the return made by the assessee for 1950-51, the assessee claimed bonus to employees and thereafter arrived at the business income at Rs. 14,555. The assessment. however, was completed under Section 23 (4) having as a guide the earlier years assessment or a total income of about Rs. 130,000/-. No doubt in the assessment of 1949-50, there was a bonus claim too. From this feature alone, it is difficult to conclude that the Income-tax Officer had scrutinised the computation and had considered the bonus too in his estimate. Actually, in the manner the estimate has been made, it would appear that the book position had been given the go-by. Unless the department is able to identify any particular item of expense as having been already allowed as a deduction in an earlier assessment conclusively Sec. 10 (2A) is not available for recoupment. This contention too is accordingly accepted". The High Court did not agree with the above view of the Tribunal although It appears that it did not disagree with the conclusion of the Tribunal that the record did not contain any indication that the Income-tax Officer had made any allowance in respect of bonus for which provision had been made while making the assessment for the assessment year 1950-51. On that finding of the Tribunal it could hardly be regarded as established that either any allowance or deduction had been granted in respect of a trading liability of the assessment year 1950-51 or it had been proved that the assessee had obtained any benefit relating to such trading liability in the assessment year 1957-58 which would attract the provisions of S. 10 (2A) of the Act. That provision only applies when an allowance for deduction has been made in the assessment of any year in respect of any loss, expenditure or trading liability incurred by the assessee and subsequently during any previous year the assessee receives any amount in respect of such loss or expenditure or has obtained some benefit in respect of such trading liability by way of remission or cessation thereof in which event the amount received by him has to be deemed to be profits and gains. On the finding of the Tribunal the condition of Sec. 10 12A) could not be said to have been satisfied and the addition of Rs. 54 479 made by the Income-tax Officer in the assessment for the year 1957-58 was not justified. It is apparent that the question whether an allowance had been granted or a deduction made in respect of a trading liability had to be decided by referring to the order relating to the assessment year 1950-51 and it could not be determined by drawing inferences from what was done in respect of the assessment of an earlier year. 3. In our judgment the finding of fact of the Appellate Tribunal did not warrant the answer returned by the High Court which is hereby discharged. The answer would thus be in the negative and in favour of the assessee. The
### Response:
1
### Explanation:
The High Court did not agree with the above view of the Tribunalalthough It appears that it did not disagree with the conclusion of the Tribunal that the record did not contain any indication that thex Officer had made any allowance in respect of bonus for which provision had been made while making the assessment for the assessment year. On that finding of the Tribunal it could hardly be regarded as established that either any allowance or deduction had been granted in respect of a trading liability of the assessment year1 or it had been proved that the assessee had obtained any benefit relating to such trading liability in the assessment year8 which would attract the provisions of S. 10 (2A) of theAct.That provision only applies when an allowance for deduction has been made in the assessment of any year in respect of any loss, expenditure or trading liability incurred by the assessee and subsequently during any previous year the assessee receives any amount in respect of such loss or expenditure or has obtained some benefit in respect of such trading liability by way of remission or cessation thereof in which event the amount received by him has to be deemed to be profits and gains. On the finding of the Tribunal the condition of Sec. 10 12A) could not be said to have been satisfied and the addition of Rs. 54 479 made by thex Officer in the assessment for the year8 was not justified. It is apparent that the question whether an allowance had been granted or a deduction made in respect of a trading liability had to be decided by referring to the order relating to the assessment year1 and it could not be determined by drawing inferences from what was done in respect of the assessment of an earlier year3. In our judgment the finding of fact of the Appellate Tribunal did not warrant the answer returned by the High Court which is hereby. Theanswer would thus be in the negative and in favour of the
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State Of Gujarat Vs. Akshay Amrutlal Thakkar
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the Commandant General and the Commandant, any Officer of the Home Guards authorised by the Commandant in this behalf may exercise the powers conferred by section 4 on the Commandant in such circumstances as the Commandant may specify." 7. Bare regarding of Section 2(2) makes it clear that the State Government is the appointing authority. The State Government appoints a Commandant of each of the Home Guards constituted on sub-section (1). Sub-section (3) deals with appointment of a Commandant General of the Home Guards in whom the general supervision and control of the Home Guards throughout the State of Gujarat is vested. Rule 8 provides for the term of office. Rule 9-A deals with the condition subject to which powers of discharge are to be exercised. Reading of Section 5 makes the position clear as regards powers privileges and the protection of the members of the Home Guards. Therefore, the appointing authority so far as the Commandants and the Commandant General are concerned is the State Government. The Commandants have the power to appoint the Home Guards. Therefore, the State Government is the superior authority in the matter of appointment. 8. Learned counsel for the State submitted that the orders passed by the authorities were not in a sense one of termination. Therefore, the action of the Commandant/Commandant General, if any, discharging a person from duty cannot be said to be without authority of law. Principles regarding the appointment of District Commandant and Home Guards is contained in the Notification dated 17.4.1993, which are as follows: 1. The age limit for the appointment of District Commandant should be 35 to 50 years. 2. First selection shall be given to the candidate whose minimum educational qualification is up to the level of graduation. 3. Candidate should neither have permit for liquor nor should he be punished under any offence of prohibition, abolition of un-touchability Act or Indian Penal Code. 4. Candidate shall underwrite that he shall neither be a member of any political party nor shall he be led by any communal institute or political party nor shall he be led by any communal institute or political party nor shall he involve any activity of this force in political or communal activities. 5. He should have at least rendered his services for three years as Taluka Home Guards officer and five years as Home Guard. However the senior most office from among the Honorary staff officers at district level will be given first selection. 6. A person who is a recipient of any of the medals given any by the president, Home Guards or Civil defence, will be given priority. 7. The person who have got training of Home Guards/N.C.C./Military or Police and also the persons who have retired in the rank of captain/Dy.S.P. shall be given priority vis-a-vis others. 8. As the honorary post of District Commandant is equivalent to the gazetted officer, Class-I, hence the appointment shall be made by the selection committee. The Selection Committee shall comprise commandant General, Home Guards Deputy Secretary, Home Department and Deputy Superintendent of Police of the concerned range of State of Gujarat. 9. The persons who may be appointed shall have to undergo the training of administrative as well as account work as may be decided by the Government. 10. After the appointment person concerned shall have to stay at District Head Quarters. 11. The tenure of the appointment shall be of five years and therefore, if the further order of appointment is not issued, he shall be treated as suo motu relieved from his post at that time instant without any notice and he shall have to hand over the charge to the immediate senior officer working under him. 12. On the completion of his tenure for the post of District Commandant or in case he is relieved prior to that, he shall have no promptly hand over the charge to other immediate senior. He shall underwrite that he shall not file any suit in any court against the fresh orders of new appointments. 9. The guidelines 4 & 5 are relevant for the purpose of this case. Guideline 5 makes it clear that only a person who rendered services for a particular period as Taluka Home Guards Officer is eligible for appointment as District Commandant. The post of District Commandant is honorary post. However, it is equivalent to the gazetted officer, Class-I and the appointment is to be made by a Selection Committee consisting of the designated officers. It is found that in terms of guideline 4, an undertaking is given that the person selected is not to be member of the political party and shall not led by any communal institute and political party and nor shall be involve in any political or communal activities. As the authorities found that the respondents were in fact acting at variance with the undertaking given, their disengagement was felt necessary. View taken in the impugned judgments, therefore, cannot be maintained and the impugned judgments are set aside. The view expressed by the Division Bench of the High Court in special Civil Application No.3447 of 1996 dated 23.1.1998 (Lateben Ramniklal Shah and Ors. vs. State of Gujarat and Ors.) taking to contrary view is the correct one. 10. As rightly contended by learned counsel for the appellant-State, the order impugned in the writ petition was one of disengagement because the respondents did not act in terms of the undertaking given. As the services rendered by the respondents were essentially honorary no civil consequences were involved. Section 6B(1-A) empowers the Commandant to discharge any member of Home Guards at any time of the opinion of the Commandant the services of such member are no longer required. The provision does necessarily refer to the discharge of a member from the Home Guards. The respondents in the instant case were not sought to be discharged as members of the Home Guards. Under the Notification in question, the discharge was from duties as District Commandant, Home Guards.
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1[ds]As rightly contended by learned counsel for the appellant-State, the order impugned in the writ petition was one of disengagement because the respondents did not act in terms of the undertaking given. As the services rendered by the respondents were essentially honorary no civil consequences were involved. Section 6B(1-A) empowers the Commandant to discharge any member of Home Guards at any time of the opinion of the Commandant the services of such member are no longer required. The provision does necessarily refer to the discharge of a member from the Home Guards. The respondents in the instant case were not sought to be discharged as members of the Home Guards. Under the Notification in question, the discharge was from duties as District Commandant, Home Guards
| 1 | 2,359 | 140 |
### 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 Commandant General and the Commandant, any Officer of the Home Guards authorised by the Commandant in this behalf may exercise the powers conferred by section 4 on the Commandant in such circumstances as the Commandant may specify." 7. Bare regarding of Section 2(2) makes it clear that the State Government is the appointing authority. The State Government appoints a Commandant of each of the Home Guards constituted on sub-section (1). Sub-section (3) deals with appointment of a Commandant General of the Home Guards in whom the general supervision and control of the Home Guards throughout the State of Gujarat is vested. Rule 8 provides for the term of office. Rule 9-A deals with the condition subject to which powers of discharge are to be exercised. Reading of Section 5 makes the position clear as regards powers privileges and the protection of the members of the Home Guards. Therefore, the appointing authority so far as the Commandants and the Commandant General are concerned is the State Government. The Commandants have the power to appoint the Home Guards. Therefore, the State Government is the superior authority in the matter of appointment. 8. Learned counsel for the State submitted that the orders passed by the authorities were not in a sense one of termination. Therefore, the action of the Commandant/Commandant General, if any, discharging a person from duty cannot be said to be without authority of law. Principles regarding the appointment of District Commandant and Home Guards is contained in the Notification dated 17.4.1993, which are as follows: 1. The age limit for the appointment of District Commandant should be 35 to 50 years. 2. First selection shall be given to the candidate whose minimum educational qualification is up to the level of graduation. 3. Candidate should neither have permit for liquor nor should he be punished under any offence of prohibition, abolition of un-touchability Act or Indian Penal Code. 4. Candidate shall underwrite that he shall neither be a member of any political party nor shall he be led by any communal institute or political party nor shall he be led by any communal institute or political party nor shall he involve any activity of this force in political or communal activities. 5. He should have at least rendered his services for three years as Taluka Home Guards officer and five years as Home Guard. However the senior most office from among the Honorary staff officers at district level will be given first selection. 6. A person who is a recipient of any of the medals given any by the president, Home Guards or Civil defence, will be given priority. 7. The person who have got training of Home Guards/N.C.C./Military or Police and also the persons who have retired in the rank of captain/Dy.S.P. shall be given priority vis-a-vis others. 8. As the honorary post of District Commandant is equivalent to the gazetted officer, Class-I, hence the appointment shall be made by the selection committee. The Selection Committee shall comprise commandant General, Home Guards Deputy Secretary, Home Department and Deputy Superintendent of Police of the concerned range of State of Gujarat. 9. The persons who may be appointed shall have to undergo the training of administrative as well as account work as may be decided by the Government. 10. After the appointment person concerned shall have to stay at District Head Quarters. 11. The tenure of the appointment shall be of five years and therefore, if the further order of appointment is not issued, he shall be treated as suo motu relieved from his post at that time instant without any notice and he shall have to hand over the charge to the immediate senior officer working under him. 12. On the completion of his tenure for the post of District Commandant or in case he is relieved prior to that, he shall have no promptly hand over the charge to other immediate senior. He shall underwrite that he shall not file any suit in any court against the fresh orders of new appointments. 9. The guidelines 4 & 5 are relevant for the purpose of this case. Guideline 5 makes it clear that only a person who rendered services for a particular period as Taluka Home Guards Officer is eligible for appointment as District Commandant. The post of District Commandant is honorary post. However, it is equivalent to the gazetted officer, Class-I and the appointment is to be made by a Selection Committee consisting of the designated officers. It is found that in terms of guideline 4, an undertaking is given that the person selected is not to be member of the political party and shall not led by any communal institute and political party and nor shall be involve in any political or communal activities. As the authorities found that the respondents were in fact acting at variance with the undertaking given, their disengagement was felt necessary. View taken in the impugned judgments, therefore, cannot be maintained and the impugned judgments are set aside. The view expressed by the Division Bench of the High Court in special Civil Application No.3447 of 1996 dated 23.1.1998 (Lateben Ramniklal Shah and Ors. vs. State of Gujarat and Ors.) taking to contrary view is the correct one. 10. As rightly contended by learned counsel for the appellant-State, the order impugned in the writ petition was one of disengagement because the respondents did not act in terms of the undertaking given. As the services rendered by the respondents were essentially honorary no civil consequences were involved. Section 6B(1-A) empowers the Commandant to discharge any member of Home Guards at any time of the opinion of the Commandant the services of such member are no longer required. The provision does necessarily refer to the discharge of a member from the Home Guards. The respondents in the instant case were not sought to be discharged as members of the Home Guards. Under the Notification in question, the discharge was from duties as District Commandant, Home Guards.
### Response:
1
### Explanation:
As rightly contended by learned counsel for the appellant-State, the order impugned in the writ petition was one of disengagement because the respondents did not act in terms of the undertaking given. As the services rendered by the respondents were essentially honorary no civil consequences were involved. Section 6B(1-A) empowers the Commandant to discharge any member of Home Guards at any time of the opinion of the Commandant the services of such member are no longer required. The provision does necessarily refer to the discharge of a member from the Home Guards. The respondents in the instant case were not sought to be discharged as members of the Home Guards. Under the Notification in question, the discharge was from duties as District Commandant, Home Guards
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Bihari Lal Batra Vs. Chief Settlement Commissioner, (Rural) Punjab
|
to law. He therefore cancelled the allotment. The appellant thereafter applied to the Chief Settlement Commissioner in revision and not being successful there moved the High Court by a petition under Arts. 226 and 227 of the Constitution. As stated earlier, this petition was dismissed and it is the correctness of this dismissal that is challenged in the appeal before us.3. Mr. Bishan Narain, learned Counsel for the appellant urged in the main two contentions in support of the appeal. The first was (1) that after the Managing officer granted a sanad on December 31, 1955 in the name of the President of India, the appellant obtained an indefeasible title to the property and that this title could not be displaced except on grounds contained in the sanad itself even in the event of the order of allotment being set aside on appeal or revision. We have considered this point in the judgment in Civil Appeal No. 552 of 1963: (AIR 1964 SC 1536 ) Mithoo Shahani v. Union of India which was pronounced on 10-3-1964 and for the reasons there stated this submission has to be rejected.4. The second point that he urged was, and this was in fact the main contention raised before the High Court that rule 2(h) of the Displaced Persons Compensation and Rehabilitation Rules 1955 was unconstitutional as contravening Art. 14 of the Constitution and so the original allotment to the appellant must be held to be lawful. We consider that there is no substance in this argument. In fact we are unable to appreciate the ground on which the contention is being argued. Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 enables the Central Government by Notification in the official Gazette to make rules to carry out the purposes of the Act, and in particular on an elaborately enumerated list of matters. It was not suggested that the rules of 1955 were not competently made under S. 40. These rules were published on May, 21, 1955 when they came into force. Rule 2 (h) the validity of which is impugned in these proceedings is a rule containing the definitions.Rule 2 (h) reads, to extract what is material:"2. In these rules, unless the context otherwise requires-(a) to (g). x x x x x x x x x(h) urban area means any area within the limits of a corporation, a municipal committee, a notified area committee, a town area committee, a small town committee, a cantonment or any other area notified as such by the Central Government from time to time;Provided that in the case of the quasi-permanent allotment of rural agricultural lands already made in the States of Punjab and Patiala and East Punjab States Union, the limits of an urban area shall be as they existed on the 15th August, 1947."The words of rural agricultural lands occurring in the proviso to this rule were replaced by an amending Notification of 1957 by the words in rural area, but this amendment is obviously of no significance. Rural area" is defined by Rule 2(f) to mean any area" which is not an urban area.5. Pausing here, it would be useful to state two matters which are not in dispute: (1) that the allotment to the appellant was made on December 29, 1955, the sanad being issued two days later. It was therefore an allotment which was made after May 21, 1955 when the rules came into force; (2) the other matter is that Khasra Nos. 880, 881 and 882 were included in urban limits on February 10, 1951 by the municipal area of Kharar being extended to cover these plots. It would therefore be obvious that on the date when the allotment was made, the allotted land was in an urban area" and therefore it could not have been validly allotted.6. We must confess our inability to comprehend that precisely was the discrimination which the rule enacted which rendered it unconstitutional as violative of Art. 14. So far as we could understand the submission, the unreasonable discrimination was said to exist because of the operation of the proviso. Under the proviso in regard to quasi-permanent allotments already made i. e., made before May, 21, 1955 in the States of Punjab and Pepsu, the test of what was to be considered an urban area" was, to be determined on the basis of the state of circumstances which obtained on 15th August, 1947. The allotment in favour of the" appellant was after the rules came into force and was not one "already made." Therefore if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and so could not have been validly made and that was the reason why it was set aside. The discrimination is said to consist in the rule having drawn a dividing 1ine at the date when it came into force, for determining whether the allotment was valid or not. It is the discrimination that is said to be involved in this prospective operation of the rule that we find it difficult to appreciate. It is possible that before the rules were framed the land now in dispute could have been allotted but because of this it is not possible to suggest that the rule altering the law in this respect which ex concessis is within the rule-making power under the Act, is invalid. Such a contention is patently self-contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alteration in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.
|
0[ds]We have considered this point in the judgment in Civil Appeal No. 552 of 1963: (AIR 1964 SC 1536 ) Mithoo Shahani v. Union of India which was pronounced on 10-3-1964 and for the reasons there stated this submission has to beconsider that there is no substance in this argument. In fact we are unable to appreciate the ground on which the contention is being argued. Section 40 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954 enables the Central Government by Notification in the official Gazette to make rules to carry out the purposes of the Act, and in particular on an elaborately enumerated list of matters. It was not suggested that the rules of 1955 were not competently made under S. 40. These rules were published on May, 21, 1955 when they came into force. Rule 2 (h) the validity of which is impugned in these proceedings is a rule containing the definitions.We must confess our inability to comprehend that precisely was the discrimination which the rule enacted which rendered it unconstitutional as violative of Art. 14. So far as we could understand the submission, the unreasonable discrimination was said to exist because of the operation of the proviso. Under the proviso in regard to quasi-permanent allotments already made i. e., made before May, 21, 1955 in the States of Punjab and Pepsu, the test of what was to be considered an urban area" was, to be determined on the basis of the state of circumstances which obtained on 15th August, 1947. The allotment in favour of the" appellant was after the rules came into force and was not one "already made." Therefore if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and so could not have been validly made and that was the reason why it was set aside. The discrimination is said to consist in the rule having drawn a dividing 1ine at the date when it came into force, for determining whether the allotment was valid or not. It is the discrimination that is said to be involved in this prospective operation of the rule that we find it difficult to appreciate. It is possible that before the rules were framed the land now in dispute could have been allotted but because of this it is not possible to suggest that the rule altering the law in this respect which ex concessis is within the rule-making power under the Act, is invalid. Such a contention is patently self-contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alteration in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.
| 0 | 1,490 | 564 |
### 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:
to law. He therefore cancelled the allotment. The appellant thereafter applied to the Chief Settlement Commissioner in revision and not being successful there moved the High Court by a petition under Arts. 226 and 227 of the Constitution. As stated earlier, this petition was dismissed and it is the correctness of this dismissal that is challenged in the appeal before us.3. Mr. Bishan Narain, learned Counsel for the appellant urged in the main two contentions in support of the appeal. The first was (1) that after the Managing officer granted a sanad on December 31, 1955 in the name of the President of India, the appellant obtained an indefeasible title to the property and that this title could not be displaced except on grounds contained in the sanad itself even in the event of the order of allotment being set aside on appeal or revision. We have considered this point in the judgment in Civil Appeal No. 552 of 1963: (AIR 1964 SC 1536 ) Mithoo Shahani v. Union of India which was pronounced on 10-3-1964 and for the reasons there stated this submission has to be rejected.4. The second point that he urged was, and this was in fact the main contention raised before the High Court that rule 2(h) of the Displaced Persons Compensation and Rehabilitation Rules 1955 was unconstitutional as contravening Art. 14 of the Constitution and so the original allotment to the appellant must be held to be lawful. We consider that there is no substance in this argument. In fact we are unable to appreciate the ground on which the contention is being argued. Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 enables the Central Government by Notification in the official Gazette to make rules to carry out the purposes of the Act, and in particular on an elaborately enumerated list of matters. It was not suggested that the rules of 1955 were not competently made under S. 40. These rules were published on May, 21, 1955 when they came into force. Rule 2 (h) the validity of which is impugned in these proceedings is a rule containing the definitions.Rule 2 (h) reads, to extract what is material:"2. In these rules, unless the context otherwise requires-(a) to (g). x x x x x x x x x(h) urban area means any area within the limits of a corporation, a municipal committee, a notified area committee, a town area committee, a small town committee, a cantonment or any other area notified as such by the Central Government from time to time;Provided that in the case of the quasi-permanent allotment of rural agricultural lands already made in the States of Punjab and Patiala and East Punjab States Union, the limits of an urban area shall be as they existed on the 15th August, 1947."The words of rural agricultural lands occurring in the proviso to this rule were replaced by an amending Notification of 1957 by the words in rural area, but this amendment is obviously of no significance. Rural area" is defined by Rule 2(f) to mean any area" which is not an urban area.5. Pausing here, it would be useful to state two matters which are not in dispute: (1) that the allotment to the appellant was made on December 29, 1955, the sanad being issued two days later. It was therefore an allotment which was made after May 21, 1955 when the rules came into force; (2) the other matter is that Khasra Nos. 880, 881 and 882 were included in urban limits on February 10, 1951 by the municipal area of Kharar being extended to cover these plots. It would therefore be obvious that on the date when the allotment was made, the allotted land was in an urban area" and therefore it could not have been validly allotted.6. We must confess our inability to comprehend that precisely was the discrimination which the rule enacted which rendered it unconstitutional as violative of Art. 14. So far as we could understand the submission, the unreasonable discrimination was said to exist because of the operation of the proviso. Under the proviso in regard to quasi-permanent allotments already made i. e., made before May, 21, 1955 in the States of Punjab and Pepsu, the test of what was to be considered an urban area" was, to be determined on the basis of the state of circumstances which obtained on 15th August, 1947. The allotment in favour of the" appellant was after the rules came into force and was not one "already made." Therefore if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and so could not have been validly made and that was the reason why it was set aside. The discrimination is said to consist in the rule having drawn a dividing 1ine at the date when it came into force, for determining whether the allotment was valid or not. It is the discrimination that is said to be involved in this prospective operation of the rule that we find it difficult to appreciate. It is possible that before the rules were framed the land now in dispute could have been allotted but because of this it is not possible to suggest that the rule altering the law in this respect which ex concessis is within the rule-making power under the Act, is invalid. Such a contention is patently self-contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alteration in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.
### Response:
0
### Explanation:
We have considered this point in the judgment in Civil Appeal No. 552 of 1963: (AIR 1964 SC 1536 ) Mithoo Shahani v. Union of India which was pronounced on 10-3-1964 and for the reasons there stated this submission has to beconsider that there is no substance in this argument. In fact we are unable to appreciate the ground on which the contention is being argued. Section 40 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954 enables the Central Government by Notification in the official Gazette to make rules to carry out the purposes of the Act, and in particular on an elaborately enumerated list of matters. It was not suggested that the rules of 1955 were not competently made under S. 40. These rules were published on May, 21, 1955 when they came into force. Rule 2 (h) the validity of which is impugned in these proceedings is a rule containing the definitions.We must confess our inability to comprehend that precisely was the discrimination which the rule enacted which rendered it unconstitutional as violative of Art. 14. So far as we could understand the submission, the unreasonable discrimination was said to exist because of the operation of the proviso. Under the proviso in regard to quasi-permanent allotments already made i. e., made before May, 21, 1955 in the States of Punjab and Pepsu, the test of what was to be considered an urban area" was, to be determined on the basis of the state of circumstances which obtained on 15th August, 1947. The allotment in favour of the" appellant was after the rules came into force and was not one "already made." Therefore if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and so could not have been validly made and that was the reason why it was set aside. The discrimination is said to consist in the rule having drawn a dividing 1ine at the date when it came into force, for determining whether the allotment was valid or not. It is the discrimination that is said to be involved in this prospective operation of the rule that we find it difficult to appreciate. It is possible that before the rules were framed the land now in dispute could have been allotted but because of this it is not possible to suggest that the rule altering the law in this respect which ex concessis is within the rule-making power under the Act, is invalid. Such a contention is patently self-contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alteration in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.
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Commissioner Of Income- Tax, Bombay Vs. Smt. Indira Balkrishna
|
By the Income-tax Amendment Act of 1939 (Act VII of 1939) the section was again amended and it then said :"Where any Act of the Central Legislature enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or members of the association individually."7. By the same Amending Act (Act VII of 1939) sub-s. (3) of S. 9 was also added.8. Now, S. 8 imposes a tax "in respect of the total income .....of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or members of the association individually." In the absence of any definition as to what constitutes an association of persons, we must construe the words in their plain ordinary meaning and we must also bear in mind that the words occur in a section which imposes a tax on the total income of each one of the units of assessment mentioned therein including an association of persons. The meaning to be assigned to the words must take colour from the context in which they occur. A number of decisions have been cited at the bar bearing on the question, and our attention has been drawn to the controversy as to whether the words "association of individuals" which occurred previously in the section should be read ejusdem generis with the word immediately preceding, viz., firm or with all the other groups of persons mentioned in the section. Into that controversy it is unnecessary to enter in the present case. Nor do we pause to consider the widely differing characteristics of the three other associations mentioned in the section viz., Hindu undivided family, a company and a firm, and whether in view of the amendments made in 1939 the words in question can be read ejusdem generis with Hindu undivided family or company.9. It is enough for our purpose to refer to three decisions : In re, B. N. Elias, 1935-3 ITR 408 (Cal); Commissioner of Income-tax, Bombay v. Laxmidas Devidas, 1937-5 ITR 584 (Bom) : and in re. Dwarkanath Harishchandra, 1937-5 ITR 716 : (AIR 1938 Bom 353 ). In 1935-3 ITR 408 (Cal ) Derbyshire, C. J. rightly pointed out that the word "associate" means, according to the Oxford dictionary, "to join in common purpose, or to joint in an action." Therefore, an association of persons must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be on the object of which is to produce income, profits or gains. This was the view expressed by Beaumout, C. J. in 1937-5 ITR 584 (Bom) at p. 589 and also in 1937-5 ITR 76 : (AIR 1938 Bom 353 ). In 1935-3 ITR 408 (Cal ) Costella, J. put the test in more forceful language. He said :"It may well be that the intention of the legislature was to hit combinations of individuals who were engaged together in some joint enterprise but did not in law constitute partnership.....When we find....that there is a combination of persons formed for the promotion of a joint enterprise....then I think no difficulty arises in the way of saying that these persons did constitute an association......."10. We think that the aforesaid decisions correctly lay down the crucial test for determining what is an association of persons within the meaning of S. 3 of the Income-tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here.There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of S. 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not.11. Learned counsel for the appellant has suggested that having regard to Ss. 3 and 4 of the Indian Income-tax Act, the real test is the existence of a common source of income in which two or more persons are interested as owner or otherwise and it is immaterial whether their shares are specific and definite or whether there is any scheme of management or not. He has submitted that if the persons so interested come to an arrangement, express or tacit, by which they divide the income at a point of time before it emanates from the source, then the association ceases; otherwise it continues to be an association. We have indicated above what is the crucial test in determining an association of persons within the meaning of S. 3, and we are of the view that the test suggested by learned counsel for the appellant are neither conclusive nor determinative of the question before us.12. Coming back to the facts found by the Tribunal, there is no finding that the three widows have combined in a joint enterprise to produce income. The only finding is that they have no exercised their right to separate enjoyment, and except for receiving the dividends and interest jointly, it has been found that they have done no act which has helped to produce income in respect of the shares and deposits. On these findings it cannot be held that the three widows had the status of an association of persons within the meaning of S. 3 of the Indian Income Tax Act.
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1[ds]The High Court, however, rightly pointed out that the only property which the widows could have managed jointly was the immovable property which fetched an income of about Rs. 11,000/-, and as to that property, the Appellate Assistant Commissioner had held that S. 9 (3) applied. There was no appeal by the Department against that finding and it was not open to the Tribunal to go behind it. Even on merits the Tribunal was wrong in thinking that the respective shares of the widows were not definite and ascertainable. They had an equal share in the income, viz., one-third each, and the provisions of S. 9(3) clearly applied in respect of the immovable property.5. With regard to the shares, dividends, and interest on deposits there was no finding of any act of joint management. Indeed, the main item consists of the dividends and it is difficult to understand what act of management the widows performed in respect thereof which produced or helped to produce income. On the contrary, the statement of the case shows that the assessee filed lists of shares copies whereof are marked annexure C and form part of the case, which showed that the shares stood separately in the name of each one of the three widows and this was not denied by the Department.We think that the aforesaid decisions correctly lay down the crucial test for determining what is an association of persons within the meaning of S. 3 of the Income-tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here.There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of S. 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn orhave indicated above what is the crucial test in determining an association of persons within the meaning of S. 3, and we are of the view that the test suggested by learned counsel for the appellant are neither conclusive nor determinative of the question before us.12. Coming back to the facts found by the Tribunal, there is no finding that the three widows have combined in a joint enterprise to produce income. The only finding is that they have no exercised their right to separate enjoyment, and except for receiving the dividends and interest jointly, it has been found that they have done no act which has helped to produce income in respect of the shares and deposits. On these findings it cannot be held that the three widows had the status of an association of persons within the meaning of S. 3 of the Indian Income Tax Act.
| 1 | 2,638 | 536 |
### 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:
By the Income-tax Amendment Act of 1939 (Act VII of 1939) the section was again amended and it then said :"Where any Act of the Central Legislature enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or members of the association individually."7. By the same Amending Act (Act VII of 1939) sub-s. (3) of S. 9 was also added.8. Now, S. 8 imposes a tax "in respect of the total income .....of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or members of the association individually." In the absence of any definition as to what constitutes an association of persons, we must construe the words in their plain ordinary meaning and we must also bear in mind that the words occur in a section which imposes a tax on the total income of each one of the units of assessment mentioned therein including an association of persons. The meaning to be assigned to the words must take colour from the context in which they occur. A number of decisions have been cited at the bar bearing on the question, and our attention has been drawn to the controversy as to whether the words "association of individuals" which occurred previously in the section should be read ejusdem generis with the word immediately preceding, viz., firm or with all the other groups of persons mentioned in the section. Into that controversy it is unnecessary to enter in the present case. Nor do we pause to consider the widely differing characteristics of the three other associations mentioned in the section viz., Hindu undivided family, a company and a firm, and whether in view of the amendments made in 1939 the words in question can be read ejusdem generis with Hindu undivided family or company.9. It is enough for our purpose to refer to three decisions : In re, B. N. Elias, 1935-3 ITR 408 (Cal); Commissioner of Income-tax, Bombay v. Laxmidas Devidas, 1937-5 ITR 584 (Bom) : and in re. Dwarkanath Harishchandra, 1937-5 ITR 716 : (AIR 1938 Bom 353 ). In 1935-3 ITR 408 (Cal ) Derbyshire, C. J. rightly pointed out that the word "associate" means, according to the Oxford dictionary, "to join in common purpose, or to joint in an action." Therefore, an association of persons must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be on the object of which is to produce income, profits or gains. This was the view expressed by Beaumout, C. J. in 1937-5 ITR 584 (Bom) at p. 589 and also in 1937-5 ITR 76 : (AIR 1938 Bom 353 ). In 1935-3 ITR 408 (Cal ) Costella, J. put the test in more forceful language. He said :"It may well be that the intention of the legislature was to hit combinations of individuals who were engaged together in some joint enterprise but did not in law constitute partnership.....When we find....that there is a combination of persons formed for the promotion of a joint enterprise....then I think no difficulty arises in the way of saying that these persons did constitute an association......."10. We think that the aforesaid decisions correctly lay down the crucial test for determining what is an association of persons within the meaning of S. 3 of the Income-tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here.There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of S. 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not.11. Learned counsel for the appellant has suggested that having regard to Ss. 3 and 4 of the Indian Income-tax Act, the real test is the existence of a common source of income in which two or more persons are interested as owner or otherwise and it is immaterial whether their shares are specific and definite or whether there is any scheme of management or not. He has submitted that if the persons so interested come to an arrangement, express or tacit, by which they divide the income at a point of time before it emanates from the source, then the association ceases; otherwise it continues to be an association. We have indicated above what is the crucial test in determining an association of persons within the meaning of S. 3, and we are of the view that the test suggested by learned counsel for the appellant are neither conclusive nor determinative of the question before us.12. Coming back to the facts found by the Tribunal, there is no finding that the three widows have combined in a joint enterprise to produce income. The only finding is that they have no exercised their right to separate enjoyment, and except for receiving the dividends and interest jointly, it has been found that they have done no act which has helped to produce income in respect of the shares and deposits. On these findings it cannot be held that the three widows had the status of an association of persons within the meaning of S. 3 of the Indian Income Tax Act.
### Response:
1
### Explanation:
The High Court, however, rightly pointed out that the only property which the widows could have managed jointly was the immovable property which fetched an income of about Rs. 11,000/-, and as to that property, the Appellate Assistant Commissioner had held that S. 9 (3) applied. There was no appeal by the Department against that finding and it was not open to the Tribunal to go behind it. Even on merits the Tribunal was wrong in thinking that the respective shares of the widows were not definite and ascertainable. They had an equal share in the income, viz., one-third each, and the provisions of S. 9(3) clearly applied in respect of the immovable property.5. With regard to the shares, dividends, and interest on deposits there was no finding of any act of joint management. Indeed, the main item consists of the dividends and it is difficult to understand what act of management the widows performed in respect thereof which produced or helped to produce income. On the contrary, the statement of the case shows that the assessee filed lists of shares copies whereof are marked annexure C and form part of the case, which showed that the shares stood separately in the name of each one of the three widows and this was not denied by the Department.We think that the aforesaid decisions correctly lay down the crucial test for determining what is an association of persons within the meaning of S. 3 of the Income-tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call attention. It is, however, necessary to add some words of caution here.There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of S. 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn orhave indicated above what is the crucial test in determining an association of persons within the meaning of S. 3, and we are of the view that the test suggested by learned counsel for the appellant are neither conclusive nor determinative of the question before us.12. Coming back to the facts found by the Tribunal, there is no finding that the three widows have combined in a joint enterprise to produce income. The only finding is that they have no exercised their right to separate enjoyment, and except for receiving the dividends and interest jointly, it has been found that they have done no act which has helped to produce income in respect of the shares and deposits. On these findings it cannot be held that the three widows had the status of an association of persons within the meaning of S. 3 of the Indian Income Tax Act.
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C.Jacob Vs. Director Of Geology & Min.Indus.Est.&Anr
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by Chapter V of the said Rules, which enumerates the classes of pension and conditions for entitlement. The enumerated classes of pension are : Classes of Pension (vide Chapter V of Pension CCSP Rules TNP Rules Rules) (i) Superannuation pension (Rule 35) Rule 32 (ii) Retiring pension (Rule 36) Rule 33 (iii) Pension on absorption in or under a corpo- (Rule 37) Rule 34 ration, company or body owned/controlled by State/Central Government (Rule 37A) (iv) Invalid pension (Rule 38) Rule 36 (v) Compensation pension payable on discharge owing to abolition of the post (Rule 39) Rule 38 (vi) Compulsory retirement pension (Rule 40 Rule 39) (vii) Compassionate allowance to Government servants who forfeit their pension on being dis- (Rule 41) Rule 40 missed or removed A government servant, whose case does not fall under any of the classes of pensions enumerated in Chapter V, is not entitled to pension. If a government servant is not able to make out entitlement to any class of pension specified in chapter V of the pension Rules, there is no question of having recourse to the rules in the chapter dealing with regulation of amount of pension (chapter VI of TNP Rules or chapter VII of CCSP Rules) for determining the quantum of pension. 15. Admittedly the petitioner was not `superannuated; nor was he absorbed in any corporation/company/body owned by state/central government; nor did he retire on account of any infirmity which incapacitated him for service; nor was he discharged on abolition of his post. Nor is he claiming compassionate allowance (on being dismissed/removed after putting in service of an extent which would entitle him to pension but for the dismissal/removal). The only other categories of pension are compulsory retirement pension and the retiring pension. A government servant compulsorily retired from service as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-third admissible to him on the date of his compulsory retirement. If a government servant is not otherwise admissible to pension, he cannot obviously be granted pension on compulsory retirement. There is no such grant in this case. That leaves us with retiring pension.16. Rule 33 of TNP Rules provides that a retiring pension shall be granted to a government servant who retires, or is retired, in accordance with the provisions of Rule 42 of the said Rules. Rule 42 of TNP Rules provides that a government servant, who under fundamental Rule 56(d), retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension. (corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48-A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years service. Therefore, the petitioner is not entitled to retiring pension.17. The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated "qualifying service of not less than 10 years". He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to "not less than 10 years service", any government servant who has put in service of 10 years or more is entitled to retiring pension. The said contention is misconceived. As stated earlier, the said rule does not relate to `entitlement of pension nor does it prescribe the conditions for eligibility, but only provides how the amount of pension should be calculated in cases where the retiring Government servant is entitled to pension under the chapter V of the pension rules. The said Rule regulates the `amount of pension not only in case of retiring pension, but in case of all classes of pension. Under Chapter V, in certain situations, a Government servant may be eligible for pension even where the service is less than ten years. Rules 32, 36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules) do not prescribe any minimum service for being entitled to pension, where the cessation of service is on account of superannuation, or on account of bodily or mental infirmity or on account of abolition of his post. When Rule 43(2) of TNP Rules (Rule 49(2)(2) of CCSP Rules) refers to payment of pension to a person who has a qualifying service of not less than 10 years, it does not mean that the minimum period of service prescribed for retirement pension is reduced to 10 years or that government servants who are dismissed/removed/compulsorily retired by way of punishment, or those who voluntarily retire before reaching the age of superannuation with less than 20 years of qualifying service, become entitled to pension. Rule 43(2) of TNP Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier, comes into play only when the Government servant is entitled to any of the classes of pension enumerated under Chapter V of the Pension Rules. Therefore, when Rule 43(2) of TNP Rules (or Rule 49(2)(b) of CCSP Rule) dealing with the quantum of pension refers to a government servant retiring in accordance with the said rules after completing qualifying service of not less than 10 years, it does not mean that pension is payable to persons who have not completed the required minimum number of years (20 years) of service or to persons who have forfeited their service on dismissal/removal from service. Therefore, the appellant is not entitled to pension. 18.
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0[ds]Admittedly the petitioner was not `superannuated; nor was he absorbed in any corporation/company/body owned by state/central government; nor did he retire on account of any infirmity which incapacitated him for service; nor was he discharged on abolition of his post. Nor is he claiming compassionate allowance (on being dismissed/removed after putting in service of an extent which would entitle him to pension but for the dismissal/removal). The only other categories of pension are compulsory retirement pension and the retiring pension. A government servant compulsorily retired from service as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-third admissible to him on the date of his compulsory retirement. If a government servant is not otherwise admissible to pension, he cannot obviously be granted pension on compulsory retirement. There is no such grant in this case. That leaves us with retiring pension.16. Rule 33 of TNP Rules provides that a retiring pension shall be granted to a government servant who retires, or is retired, in accordance with the provisions of Rule 42 of the said Rules. Rule 42 of TNP Rules provides that a government servant, who under fundamental Rule 56(d), retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension. (corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48-A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years service. Therefore, the petitioner is not entitled to retiring pension.17. The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated "qualifying service of not less than 10 years". He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to "not less than 10 years service", any government servant who has put in service of 10 years or more is entitled to retiring pension. The said contention is misconceived. As stated earlier, the said rule does not relate to `entitlement of pension nor does it prescribe the conditions for eligibility, but only provides how the amount of pension should be calculated in cases where the retiring Government servant is entitled to pension under the chapter V of the pension rules. The said Rule regulates the `amount of pension not only in case of retiring pension, but in case of all classes of pension. Under Chapter V, in certain situations, a Government servant may be eligible for pension even where the service is less than ten years. Rules 32, 36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules) do not prescribe any minimum service for being entitled to pension, where the cessation of service is on account of superannuation, or on account of bodily or mental infirmity or on account of abolition of his post. When Rule 43(2) of TNP Rules (Rule 49(2)(2) of CCSP Rules) refers to payment of pension to a person who has a qualifying service of not less than 10 years, it does not mean that the minimum period of service prescribed for retirement pension is reduced to 10 years or that government servants who are dismissed/removed/compulsorily retired by way of punishment, or those who voluntarily retire before reaching the age of superannuation with less than 20 years of qualifying service, become entitled to pension. Rule 43(2) of TNP Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier, comes into play only when the Government servant is entitled to any of the classes of pension enumerated under Chapter V of the Pension Rules. Therefore, when Rule 43(2) of TNP Rules (or Rule 49(2)(b) of CCSP Rule) dealing with the quantum of pension refers to a government servant retiring in accordance with the said rules after completing qualifying service of not less than 10 years, it does not mean that pension is payable to persons who have not completed the required minimum number of years (20 years) of service or to persons who have forfeited their service on dismissal/removal from service. Therefore, the appellant is not entitled to pension
| 0 | 4,639 | 915 |
### 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:
by Chapter V of the said Rules, which enumerates the classes of pension and conditions for entitlement. The enumerated classes of pension are : Classes of Pension (vide Chapter V of Pension CCSP Rules TNP Rules Rules) (i) Superannuation pension (Rule 35) Rule 32 (ii) Retiring pension (Rule 36) Rule 33 (iii) Pension on absorption in or under a corpo- (Rule 37) Rule 34 ration, company or body owned/controlled by State/Central Government (Rule 37A) (iv) Invalid pension (Rule 38) Rule 36 (v) Compensation pension payable on discharge owing to abolition of the post (Rule 39) Rule 38 (vi) Compulsory retirement pension (Rule 40 Rule 39) (vii) Compassionate allowance to Government servants who forfeit their pension on being dis- (Rule 41) Rule 40 missed or removed A government servant, whose case does not fall under any of the classes of pensions enumerated in Chapter V, is not entitled to pension. If a government servant is not able to make out entitlement to any class of pension specified in chapter V of the pension Rules, there is no question of having recourse to the rules in the chapter dealing with regulation of amount of pension (chapter VI of TNP Rules or chapter VII of CCSP Rules) for determining the quantum of pension. 15. Admittedly the petitioner was not `superannuated; nor was he absorbed in any corporation/company/body owned by state/central government; nor did he retire on account of any infirmity which incapacitated him for service; nor was he discharged on abolition of his post. Nor is he claiming compassionate allowance (on being dismissed/removed after putting in service of an extent which would entitle him to pension but for the dismissal/removal). The only other categories of pension are compulsory retirement pension and the retiring pension. A government servant compulsorily retired from service as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-third admissible to him on the date of his compulsory retirement. If a government servant is not otherwise admissible to pension, he cannot obviously be granted pension on compulsory retirement. There is no such grant in this case. That leaves us with retiring pension.16. Rule 33 of TNP Rules provides that a retiring pension shall be granted to a government servant who retires, or is retired, in accordance with the provisions of Rule 42 of the said Rules. Rule 42 of TNP Rules provides that a government servant, who under fundamental Rule 56(d), retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension. (corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48-A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years service. Therefore, the petitioner is not entitled to retiring pension.17. The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated "qualifying service of not less than 10 years". He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to "not less than 10 years service", any government servant who has put in service of 10 years or more is entitled to retiring pension. The said contention is misconceived. As stated earlier, the said rule does not relate to `entitlement of pension nor does it prescribe the conditions for eligibility, but only provides how the amount of pension should be calculated in cases where the retiring Government servant is entitled to pension under the chapter V of the pension rules. The said Rule regulates the `amount of pension not only in case of retiring pension, but in case of all classes of pension. Under Chapter V, in certain situations, a Government servant may be eligible for pension even where the service is less than ten years. Rules 32, 36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules) do not prescribe any minimum service for being entitled to pension, where the cessation of service is on account of superannuation, or on account of bodily or mental infirmity or on account of abolition of his post. When Rule 43(2) of TNP Rules (Rule 49(2)(2) of CCSP Rules) refers to payment of pension to a person who has a qualifying service of not less than 10 years, it does not mean that the minimum period of service prescribed for retirement pension is reduced to 10 years or that government servants who are dismissed/removed/compulsorily retired by way of punishment, or those who voluntarily retire before reaching the age of superannuation with less than 20 years of qualifying service, become entitled to pension. Rule 43(2) of TNP Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier, comes into play only when the Government servant is entitled to any of the classes of pension enumerated under Chapter V of the Pension Rules. Therefore, when Rule 43(2) of TNP Rules (or Rule 49(2)(b) of CCSP Rule) dealing with the quantum of pension refers to a government servant retiring in accordance with the said rules after completing qualifying service of not less than 10 years, it does not mean that pension is payable to persons who have not completed the required minimum number of years (20 years) of service or to persons who have forfeited their service on dismissal/removal from service. Therefore, the appellant is not entitled to pension. 18.
### Response:
0
### Explanation:
Admittedly the petitioner was not `superannuated; nor was he absorbed in any corporation/company/body owned by state/central government; nor did he retire on account of any infirmity which incapacitated him for service; nor was he discharged on abolition of his post. Nor is he claiming compassionate allowance (on being dismissed/removed after putting in service of an extent which would entitle him to pension but for the dismissal/removal). The only other categories of pension are compulsory retirement pension and the retiring pension. A government servant compulsorily retired from service as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-third admissible to him on the date of his compulsory retirement. If a government servant is not otherwise admissible to pension, he cannot obviously be granted pension on compulsory retirement. There is no such grant in this case. That leaves us with retiring pension.16. Rule 33 of TNP Rules provides that a retiring pension shall be granted to a government servant who retires, or is retired, in accordance with the provisions of Rule 42 of the said Rules. Rule 42 of TNP Rules provides that a government servant, who under fundamental Rule 56(d), retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension. (corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48-A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years service. Therefore, the petitioner is not entitled to retiring pension.17. The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated "qualifying service of not less than 10 years". He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to "not less than 10 years service", any government servant who has put in service of 10 years or more is entitled to retiring pension. The said contention is misconceived. As stated earlier, the said rule does not relate to `entitlement of pension nor does it prescribe the conditions for eligibility, but only provides how the amount of pension should be calculated in cases where the retiring Government servant is entitled to pension under the chapter V of the pension rules. The said Rule regulates the `amount of pension not only in case of retiring pension, but in case of all classes of pension. Under Chapter V, in certain situations, a Government servant may be eligible for pension even where the service is less than ten years. Rules 32, 36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules) do not prescribe any minimum service for being entitled to pension, where the cessation of service is on account of superannuation, or on account of bodily or mental infirmity or on account of abolition of his post. When Rule 43(2) of TNP Rules (Rule 49(2)(2) of CCSP Rules) refers to payment of pension to a person who has a qualifying service of not less than 10 years, it does not mean that the minimum period of service prescribed for retirement pension is reduced to 10 years or that government servants who are dismissed/removed/compulsorily retired by way of punishment, or those who voluntarily retire before reaching the age of superannuation with less than 20 years of qualifying service, become entitled to pension. Rule 43(2) of TNP Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier, comes into play only when the Government servant is entitled to any of the classes of pension enumerated under Chapter V of the Pension Rules. Therefore, when Rule 43(2) of TNP Rules (or Rule 49(2)(b) of CCSP Rule) dealing with the quantum of pension refers to a government servant retiring in accordance with the said rules after completing qualifying service of not less than 10 years, it does not mean that pension is payable to persons who have not completed the required minimum number of years (20 years) of service or to persons who have forfeited their service on dismissal/removal from service. Therefore, the appellant is not entitled to pension
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Life Insurance Corporation of India Vs. Commissioner of Income Tax
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of the inherited opening balance with the Corporation and deduction of the same would have been given under rule 2(1)(b). The question is : Whether, the refund having been made to the Corporation only because of the provision in section 7 of the LIC Act, the same result should not follow on the wording of rule 2(1)(b) ?Rule 2(1)(b) of the First Schedule to the Income-tax Act, 1961, is as under "2. Computation of profits of life insurance business.--(1) The profits and gains of life insurance business shall be taken to be the greater of the following-- (b) the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the act uarial valuation made in accordance with the Insurance Act, 1938 (4 of 1938), in respect of the last intervaluation period ending before the commencement of the assessment year, so as to exclude from it any surplus or deficit included therein which was made in any earlier inter-valuation period and any expenditure or allowance which is not deductible under the provisions of [sections 30 to 43A] in computing income chargeable under the head Profits and gains of business or profession. " * It is obvious that in the surplus or deficit in any inter-valuation period relating to the Corporation which came to be formed only on the appointed day in 1956, this amount could not be reflected since it related to a period prior to the formation of the Corporation. The law does not contemplate or require the performance of an impossible act - lex non cogit ad impossibilia. It is now to be seen whether the expression "included therein" in rule 2(1)(b) is alone sufficient to negative the logical legal effect of section 7 of the LIC Act The legal fiction enacted in section 7(2) of the LIC Act must be taken to its logical conclusion. For this reason, the amount of refund made to the Corporation because of the excess tax paid by the predecessor prior to the appointed day on which the Corporation was formed, must form a part of the assets of the predecessor which came to be transferred and vested in the Corporation on the appointed day in 1956 on the formation of the Corporation. For the same reason, this amount of refund, even though made later, must also be deemed to be included in the inherited opening balance shown by the Corporation in the earlier inter-valuation period which undisputedly had to be deducted under rule 2(1)(b). It follows that because of this legal fiction being required to be taken to its logical conclusion, the amount so refunded to the Corporation must be deemed to be included in the earlier inter-valuation period of the Corporation. On this conclusion, the requirement of rule 2(1)(b) is satisfied since the amount is deemed to be included in the earlier inter-valuation period of the Corporation itself. The expression "included therein" which is the basis of the view taken by the Tribunal and the High Court and is also the contention of the Revenue before us, must be construed to mean also the amount deemed to be included therein because of the legal effect of section 7 of the LIC ActThe High Court failed to appreciate the true import of the decision in Bombay Mutual Life Assurance Society Ltd. v. CIT to take the view that the decision turned on the application of rule 3(b) of the Schedule which made certain provisions for the purposes of computing the surplus for the purposes of rule 2 ; and that the latter part of rule 3(b) was given effect to because it was found that that amount was liable to be included as a part of the surplus. The significance of that decision in the present context is in the observations of Chagla C. J., speaking for the Bench, as under (at page 198) " With regard to these two sums we would like to add that as we are holding that these two amounts form part of the surplus and, therefore, liable to tax although in the accounts of the company, they have not been shown as forming part of the surplus, Sir Jamshedji apprehends that when in fact these amounts are shown as part of the surplus in future the taxing authorities will tax this amount over again. Now it is clear that when you determine the surplus for the purposes of rule 2(b) you have to deduct from it any surplus or deficit included therein which was made in any earlier inter-valuation period. Therefore, if the Department proposes to tax this sum of Rs. 2, 72, 946 and also the sum of Rs. 1, 00, 000 it can only be on the basis that these two amounts formed part of the surplus. Therefore, in future if these two amounts are shown in the actuarial valuation as part of the surplus they would not be liable to tax over again as the position in law is clear and we have no doubt that the Department will act in accordance with the directions we are giving in this reference." * The principle enunciated in the above passage to be noticed is (page 198) ".....in future if these two amounts are shown in the actuarial valuation as part of the surplus they would not be liable to tax over again as the position in law is clear . . . ..." * This aspect has been overlooked by the High CourtA harmonious construction of the provisions of the LIC Act, particularly section 7 therein, and rule 2(1)(b) of the First Schedule to the Income-tax Act, 1961, requires this construction to be made. Unless this is done, full effect cannot be given to section 7 of the LIC Act, for which we find no reason. Since the requirement of harmonious construction leads to this result which is also in consonance with logic and justice of the cause, we do not find any reason to take a different view
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1[ds]This aspect has been overlooked by the High CourtA harmonious construction of the provisions of the LIC Act, particularly section 7 therein, and rule 2(1)(b) of the First Schedule to theAct, 1961, requires this construction to be made. Unless this is done, full effect cannot be given to section 7 of the LIC Act, for which we find no reason. Since the requirement of harmonious construction leads to this result which is also in consonance with logic and justice of the cause, we do not find any reason to take a different view
| 1 | 3,642 | 113 |
### Instruction:
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of the inherited opening balance with the Corporation and deduction of the same would have been given under rule 2(1)(b). The question is : Whether, the refund having been made to the Corporation only because of the provision in section 7 of the LIC Act, the same result should not follow on the wording of rule 2(1)(b) ?Rule 2(1)(b) of the First Schedule to the Income-tax Act, 1961, is as under "2. Computation of profits of life insurance business.--(1) The profits and gains of life insurance business shall be taken to be the greater of the following-- (b) the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the act uarial valuation made in accordance with the Insurance Act, 1938 (4 of 1938), in respect of the last intervaluation period ending before the commencement of the assessment year, so as to exclude from it any surplus or deficit included therein which was made in any earlier inter-valuation period and any expenditure or allowance which is not deductible under the provisions of [sections 30 to 43A] in computing income chargeable under the head Profits and gains of business or profession. " * It is obvious that in the surplus or deficit in any inter-valuation period relating to the Corporation which came to be formed only on the appointed day in 1956, this amount could not be reflected since it related to a period prior to the formation of the Corporation. The law does not contemplate or require the performance of an impossible act - lex non cogit ad impossibilia. It is now to be seen whether the expression "included therein" in rule 2(1)(b) is alone sufficient to negative the logical legal effect of section 7 of the LIC Act The legal fiction enacted in section 7(2) of the LIC Act must be taken to its logical conclusion. For this reason, the amount of refund made to the Corporation because of the excess tax paid by the predecessor prior to the appointed day on which the Corporation was formed, must form a part of the assets of the predecessor which came to be transferred and vested in the Corporation on the appointed day in 1956 on the formation of the Corporation. For the same reason, this amount of refund, even though made later, must also be deemed to be included in the inherited opening balance shown by the Corporation in the earlier inter-valuation period which undisputedly had to be deducted under rule 2(1)(b). It follows that because of this legal fiction being required to be taken to its logical conclusion, the amount so refunded to the Corporation must be deemed to be included in the earlier inter-valuation period of the Corporation. On this conclusion, the requirement of rule 2(1)(b) is satisfied since the amount is deemed to be included in the earlier inter-valuation period of the Corporation itself. The expression "included therein" which is the basis of the view taken by the Tribunal and the High Court and is also the contention of the Revenue before us, must be construed to mean also the amount deemed to be included therein because of the legal effect of section 7 of the LIC ActThe High Court failed to appreciate the true import of the decision in Bombay Mutual Life Assurance Society Ltd. v. CIT to take the view that the decision turned on the application of rule 3(b) of the Schedule which made certain provisions for the purposes of computing the surplus for the purposes of rule 2 ; and that the latter part of rule 3(b) was given effect to because it was found that that amount was liable to be included as a part of the surplus. The significance of that decision in the present context is in the observations of Chagla C. J., speaking for the Bench, as under (at page 198) " With regard to these two sums we would like to add that as we are holding that these two amounts form part of the surplus and, therefore, liable to tax although in the accounts of the company, they have not been shown as forming part of the surplus, Sir Jamshedji apprehends that when in fact these amounts are shown as part of the surplus in future the taxing authorities will tax this amount over again. Now it is clear that when you determine the surplus for the purposes of rule 2(b) you have to deduct from it any surplus or deficit included therein which was made in any earlier inter-valuation period. Therefore, if the Department proposes to tax this sum of Rs. 2, 72, 946 and also the sum of Rs. 1, 00, 000 it can only be on the basis that these two amounts formed part of the surplus. Therefore, in future if these two amounts are shown in the actuarial valuation as part of the surplus they would not be liable to tax over again as the position in law is clear and we have no doubt that the Department will act in accordance with the directions we are giving in this reference." * The principle enunciated in the above passage to be noticed is (page 198) ".....in future if these two amounts are shown in the actuarial valuation as part of the surplus they would not be liable to tax over again as the position in law is clear . . . ..." * This aspect has been overlooked by the High CourtA harmonious construction of the provisions of the LIC Act, particularly section 7 therein, and rule 2(1)(b) of the First Schedule to the Income-tax Act, 1961, requires this construction to be made. Unless this is done, full effect cannot be given to section 7 of the LIC Act, for which we find no reason. Since the requirement of harmonious construction leads to this result which is also in consonance with logic and justice of the cause, we do not find any reason to take a different view
### Response:
1
### Explanation:
This aspect has been overlooked by the High CourtA harmonious construction of the provisions of the LIC Act, particularly section 7 therein, and rule 2(1)(b) of the First Schedule to theAct, 1961, requires this construction to be made. Unless this is done, full effect cannot be given to section 7 of the LIC Act, for which we find no reason. Since the requirement of harmonious construction leads to this result which is also in consonance with logic and justice of the cause, we do not find any reason to take a different view
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Commissioner of Income Tax 5 Mumbai Vs. M/s. Essar Teleholdings Ltd. Through its Manager
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and foremost poser is as to whether it was possible to make the block assessment with the addition of levy of surcharge, in the absence of proviso to Section 113? In Suresh N. Gupta itself, it was acknowledged and admitted that the position prior to the amendment of Section 113 of the Act whereby the proviso was added, whether surcharge was payable in respect of block assessment or not, was totally ambiguous and unclear. The Court pointed out that some assessing officers had taken the view that no surcharge is leviable. Others were at a loss to apply a particular rate of surcharge as they were not clear as to which Finance Act, prescribing such rates, was applicable. It is a matter of common knowledge and is also pointed out that the surcharge varies from year to year. However, the assessing officers were indeterminative about the date with reference to which rates provided for in the Finance Act were to be made applicable. They had four dates before them viz.:(Suresh N. Gupta case, (2008) 4 SCC 362 , SCC p. 379, para 35)(i) Whether surcharge was leviable with reference to the rates provided for in the Finance Act of the year in which the search was initiated; or(ii) the year in which the search was concluded; or(iii) the year in which the block assessment proceedings under Section 158BC of the Act were initiated; or(iv) the year in which block assessment order was passed.” 45. As noted above, that Rule 8D has again been amended by Income Tax (Fourteenth Amendment) Rules, 2016 w.e.f. 02.06.2016, by which Rule 8D sub-rule (2) has been substituted by a new provision which is to the following effect: [(2) The expenditure in relation to income which does not form part of the total income shall be the aggregate of following amounts, namely: (i) the amount of expenditure directly relating to income which does not form part of total income; and (ii) an amount equal to one per cent of the annual average of the monthly averages of the opening and closing balances of the value of investment, income from which does not or shall not form part of total income: Provided that the amount referred to in clause (i) and clause (ii) shall not exceed the total expenditure claimed by the assessee.] 46. The method for determining the amount of expenditure brought in force w.e.f. 24.03.2008 has been given a go-bye and a new method has been brought into force w.e.f. 02.06.2016, by interpreting the Rule 8D retrospective, there will be a conflict in applicability of 5th & 14th Amendment Rules which clearly indicates that the Rule has a prospective operation, which has been prospectively changed by adopting another methodology. 47. One of the submissions raised by the learned counsel for the assessee also needs to be noticed. Learned counsel for the assessee submits that it is well-settled that subordinate legislation ordinarily is not retrospective unless there are clear indication to the same. Reliance has been placed on judgment of this Court in State of Jharkhand & Ors. Vs. Shiv Karampal Sahu, (2009) 11 SCC 453. In para 17 following has been stated: “17. Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The Circular Letter dated 7-5-2003 was given a prospective effect. The father of the respondent died on 19-5-2000. There is nothing to show that even Circular dated 9-8-2000 had been given retrospective effect. In any view of the matter, as the State of Jharkhand in the Circular Letter dated 7-5-2003 adopted the earlier circular letters issued by the State of Bihar only in respect of cases where death had occurred after 15-10-2000 i.e. the date from which the State of Jharkhand came into being, the High Court, in our opinion, committed a serious error in giving retrospective effect thereto indirectly which it could not do directly. Reasons assigned by the High Court, for the reasons aforementioned, are unacceptable.” There is no indication in Rule 8D to the effect that Rule 8D intended to apply retrospectively.48. Applying the principles of statutory interpretation for interpreting retrospectivity of a fiscal statute and looking into the nature and purpose of subsection (2) and subsection (3) of Section 14A as well as purpose and intent of Rule 8D coupled with the explanatory notes in the Finance Bill, 2006 and the departmental understanding as reflected by Circular dated 28.12.2006, we are of the considered opinion that Rule 8D was intended to operate prospectively.49. It is relevant to note that impugned judgment in this appeal relies on earlier judgment of Bombay High Court in Godrej and Boyce Manufacturing Company Limited versus Deputy Commissioner of Income Tax, Mumbai and Another, (2017) 7 SCC 421 , where the Division Bench of the Bombay High court after elaborately considering the principles to determine the prospectivity or retrospectivity of the amendment has concluded that Rule 8D is prospective in nature. Against the aforesaid judgment of the Bombay High court dated 12.08.2010 an appeal was filed in this court which has been decided by vide its judgment reported in Godrej and Boyce Manufacturing Company Limited Vs. Deputy Commissioner of Income Tax, Mumbai & Anr. (2017) 7 SCC 421. This Court, while deciding the above appeal repelled the challenge raised by the assessee regarding vires of Section 14A. In para 36 of the judgment, this Court noticed that with regard to retrospectivity of provisions Revenue had filed appeal, hence the said question was not gone into the aforesaid appeal. In the above case, this Court specifically left the question of retrospectivity to be decided in other appeals filed by the Revenue. We thus have proceeded to decide the question of retrospectivity of Rule 8D in these appeals.50. In view of our opinion as expressed above, dismissal of the appeal by the Bombay High Court is fully sustainable. As held above, the Rule 8D is prospective in operation and could not have been applied to any assessment year prior to Assessment Year 200809.
|
0[ds]48. Applying the principles of statutory interpretation for interpreting retrospectivity of a fiscal statute and looking into the nature and purpose of subsection (2) and subsection (3) of Section 14A as well as purpose and intent of Rule 8D coupled with the explanatory notes in the Finance Bill, 2006 and the departmental understanding as reflected by Circular dated 28.12.2006, we are of the considered opinion that Rule 8D was intended to operate prospectively.49. It is relevant to note that impugned judgment in this appeal relies on earlier judgment of Bombay High Court in Godrej and Boyce Manufacturing Company Limited versus Deputy Commissioner of Income Tax, Mumbai and Another, (2017) 7 SCC 421 , where the Division Bench of the Bombay High court after elaborately considering the principles to determine the prospectivity or retrospectivity of the amendment has concluded that Rule 8D is prospective in nature. Against the aforesaid judgment of the Bombay High court dated 12.08.2010 an appeal was filed in this court which has been decided by vide its judgment reported in Godrej and Boyce Manufacturing Company Limited Vs. Deputy Commissioner of Income Tax, Mumbai & Anr. (2017) 7 SCC 421. This Court, while deciding the above appeal repelled the challenge raised by the assessee regarding vires of Section 14A. In para 36 of the judgment, this Court noticed that with regard to retrospectivity of provisions Revenue had filed appeal, hence the said question was not gone into the aforesaid appeal. In the above case, this Court specifically left the question of retrospectivity to be decided in other appeals filed by the Revenue. We thus have proceeded to decide the question of retrospectivity of Rule 8D in these appeals.50. In view of our opinion as expressed above, dismissal of the appeal by the Bombay High Court is fully sustainable. As held above, the Rule 8D is prospective in operation and could not have been applied to any assessment year prior to Assessment Year 200809.
| 0 | 10,005 | 359 |
### 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:
and foremost poser is as to whether it was possible to make the block assessment with the addition of levy of surcharge, in the absence of proviso to Section 113? In Suresh N. Gupta itself, it was acknowledged and admitted that the position prior to the amendment of Section 113 of the Act whereby the proviso was added, whether surcharge was payable in respect of block assessment or not, was totally ambiguous and unclear. The Court pointed out that some assessing officers had taken the view that no surcharge is leviable. Others were at a loss to apply a particular rate of surcharge as they were not clear as to which Finance Act, prescribing such rates, was applicable. It is a matter of common knowledge and is also pointed out that the surcharge varies from year to year. However, the assessing officers were indeterminative about the date with reference to which rates provided for in the Finance Act were to be made applicable. They had four dates before them viz.:(Suresh N. Gupta case, (2008) 4 SCC 362 , SCC p. 379, para 35)(i) Whether surcharge was leviable with reference to the rates provided for in the Finance Act of the year in which the search was initiated; or(ii) the year in which the search was concluded; or(iii) the year in which the block assessment proceedings under Section 158BC of the Act were initiated; or(iv) the year in which block assessment order was passed.” 45. As noted above, that Rule 8D has again been amended by Income Tax (Fourteenth Amendment) Rules, 2016 w.e.f. 02.06.2016, by which Rule 8D sub-rule (2) has been substituted by a new provision which is to the following effect: [(2) The expenditure in relation to income which does not form part of the total income shall be the aggregate of following amounts, namely: (i) the amount of expenditure directly relating to income which does not form part of total income; and (ii) an amount equal to one per cent of the annual average of the monthly averages of the opening and closing balances of the value of investment, income from which does not or shall not form part of total income: Provided that the amount referred to in clause (i) and clause (ii) shall not exceed the total expenditure claimed by the assessee.] 46. The method for determining the amount of expenditure brought in force w.e.f. 24.03.2008 has been given a go-bye and a new method has been brought into force w.e.f. 02.06.2016, by interpreting the Rule 8D retrospective, there will be a conflict in applicability of 5th & 14th Amendment Rules which clearly indicates that the Rule has a prospective operation, which has been prospectively changed by adopting another methodology. 47. One of the submissions raised by the learned counsel for the assessee also needs to be noticed. Learned counsel for the assessee submits that it is well-settled that subordinate legislation ordinarily is not retrospective unless there are clear indication to the same. Reliance has been placed on judgment of this Court in State of Jharkhand & Ors. Vs. Shiv Karampal Sahu, (2009) 11 SCC 453. In para 17 following has been stated: “17. Ordinarily, a subordinate legislation should not be construed to be retrospective in operation. The Circular Letter dated 7-5-2003 was given a prospective effect. The father of the respondent died on 19-5-2000. There is nothing to show that even Circular dated 9-8-2000 had been given retrospective effect. In any view of the matter, as the State of Jharkhand in the Circular Letter dated 7-5-2003 adopted the earlier circular letters issued by the State of Bihar only in respect of cases where death had occurred after 15-10-2000 i.e. the date from which the State of Jharkhand came into being, the High Court, in our opinion, committed a serious error in giving retrospective effect thereto indirectly which it could not do directly. Reasons assigned by the High Court, for the reasons aforementioned, are unacceptable.” There is no indication in Rule 8D to the effect that Rule 8D intended to apply retrospectively.48. Applying the principles of statutory interpretation for interpreting retrospectivity of a fiscal statute and looking into the nature and purpose of subsection (2) and subsection (3) of Section 14A as well as purpose and intent of Rule 8D coupled with the explanatory notes in the Finance Bill, 2006 and the departmental understanding as reflected by Circular dated 28.12.2006, we are of the considered opinion that Rule 8D was intended to operate prospectively.49. It is relevant to note that impugned judgment in this appeal relies on earlier judgment of Bombay High Court in Godrej and Boyce Manufacturing Company Limited versus Deputy Commissioner of Income Tax, Mumbai and Another, (2017) 7 SCC 421 , where the Division Bench of the Bombay High court after elaborately considering the principles to determine the prospectivity or retrospectivity of the amendment has concluded that Rule 8D is prospective in nature. Against the aforesaid judgment of the Bombay High court dated 12.08.2010 an appeal was filed in this court which has been decided by vide its judgment reported in Godrej and Boyce Manufacturing Company Limited Vs. Deputy Commissioner of Income Tax, Mumbai & Anr. (2017) 7 SCC 421. This Court, while deciding the above appeal repelled the challenge raised by the assessee regarding vires of Section 14A. In para 36 of the judgment, this Court noticed that with regard to retrospectivity of provisions Revenue had filed appeal, hence the said question was not gone into the aforesaid appeal. In the above case, this Court specifically left the question of retrospectivity to be decided in other appeals filed by the Revenue. We thus have proceeded to decide the question of retrospectivity of Rule 8D in these appeals.50. In view of our opinion as expressed above, dismissal of the appeal by the Bombay High Court is fully sustainable. As held above, the Rule 8D is prospective in operation and could not have been applied to any assessment year prior to Assessment Year 200809.
### Response:
0
### Explanation:
48. Applying the principles of statutory interpretation for interpreting retrospectivity of a fiscal statute and looking into the nature and purpose of subsection (2) and subsection (3) of Section 14A as well as purpose and intent of Rule 8D coupled with the explanatory notes in the Finance Bill, 2006 and the departmental understanding as reflected by Circular dated 28.12.2006, we are of the considered opinion that Rule 8D was intended to operate prospectively.49. It is relevant to note that impugned judgment in this appeal relies on earlier judgment of Bombay High Court in Godrej and Boyce Manufacturing Company Limited versus Deputy Commissioner of Income Tax, Mumbai and Another, (2017) 7 SCC 421 , where the Division Bench of the Bombay High court after elaborately considering the principles to determine the prospectivity or retrospectivity of the amendment has concluded that Rule 8D is prospective in nature. Against the aforesaid judgment of the Bombay High court dated 12.08.2010 an appeal was filed in this court which has been decided by vide its judgment reported in Godrej and Boyce Manufacturing Company Limited Vs. Deputy Commissioner of Income Tax, Mumbai & Anr. (2017) 7 SCC 421. This Court, while deciding the above appeal repelled the challenge raised by the assessee regarding vires of Section 14A. In para 36 of the judgment, this Court noticed that with regard to retrospectivity of provisions Revenue had filed appeal, hence the said question was not gone into the aforesaid appeal. In the above case, this Court specifically left the question of retrospectivity to be decided in other appeals filed by the Revenue. We thus have proceeded to decide the question of retrospectivity of Rule 8D in these appeals.50. In view of our opinion as expressed above, dismissal of the appeal by the Bombay High Court is fully sustainable. As held above, the Rule 8D is prospective in operation and could not have been applied to any assessment year prior to Assessment Year 200809.
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