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Delta Distilleries Ltd Vs. United Spirits Limited | if necessary the same can be used. However, as observed by the learned Arbitrator in her order dated 27.3.2007, the documents sought in the present matter were required to arrive at the decision on the claim of the respondent no. 1, since, the quantification in support of the claim had been done by the respondent no. 1 on a theoretical basis. A hypothetical calculation should not be resorted to when actual Sales Tax Assessments are available, which would show as to whether the quantum of set-off allowed and claimed was in fact justified. 22. In the circumstances, there is no substance in the first objection viz. an order passed by the earlier Arbitrator dated 27.3.2007, and the subsequent enabling order passed by the Arbitral Tribunal dated 16.9.2011 permitting the respondent to apply under Section 27 could not have been passed. 23. The second objection was that the assessment orders were confidential documents, and Section 71 of the Maharashtra Value Added Tax, 2002 and its pre-cursor Section 64 of the Bombay Sales Tax Act, did not permit production of these documents, and a direction as sought could not have been granted. Since, these two sections are invoked, the relevant part of both the sections are quoted below. “Section 71 (1) – All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act (other than proceeding before a Criminal Court) or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act shall, save as provided in sub-section (3), be treated as confidential; and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to given evidence before it in respect thereof.”“Section 64 (1) – All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act (other than proceeding before a Criminal Court) or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act shall, save as provided in sub-section (3), be treated as confidential; and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to given evidence before it in respect thereof.” 24. If we look at the words used in these two sections, they very clearly state that particulars contained in any return or statement made by a party, or document produced along therewith are confidential, and no court shall pass any order requiring the Government or a Government servant to produce any such statement, document or return. It is a settled principle of law that the words used in a statute are to be read as they are used, to the extent possible, to ascertain the meaning thereof. Both these provisions contained a bar only against the Government officers from producing the documents mentioned therein. There is no bar therein against a party to produce any such document. In Tulsiram Sanganaria and Another v. Srimati Anni Rai and Ors. reported in 1971 (1) SCC 284 , a bench of three Judges of this Court interpreted an identical provision in Section 54(1) of the Income Tax Act, 1922, and held that the said provision created a bar on the production of the documents mentioned therein by the officials and other servants of the Income Tax Department, and made it obligatory on them to treat as confidential the records and documents mentioned therein, but the assessee or his representative-in-interest could produce assessment orders as evidence, and such evidence was admissible. Thus, if a claim is to be decided on the basis of an order of assessment, the claimant as well cannot be denied the right to seek a direction to the party concerned to produce the assessment order. It is this very prayer which has been allowed by the earlier order dated 27.3.2007 passed by the then Arbitrator, and also by the subsequent order dated 16.9.2011 passed by the Arbitral Tribunal, and in our view rightly so. There is no substance in the second objection as well. 25. There is one more aspect which we must note, i.e., when the first respondent made an application for production of the assessment orders, the defence taken by the appellant in their affidavit dated 16.9.2011 was that those documents were confidential documents, and could not be directed to be produced. It was not stated at that time that the said documents were not available. It is ten months thereafter, that when the second affidavit was filed in the High Court, that the respondent for the first time contended that the said documents were not available. This was clearly an after thought, and this attitude of the Respondent in a way justified the earlier order permitting an application under Section 27 passed by the Arbitral Tribunal. The Assistant Commissioner of Sales Tax of the concerned area was also joined as respondent so that he could be directed to produce the required documents. However, he reported that those documents were old records, and were destroyed. The learned Single Judge did not pass any order against the respondent No.2 to produce the documents, as sought. However, the learned Single Judge rightly allowed the petition as against the appellant in terms of prayer clause ‘A’, directing the appellant to produce the documents which were sought by the respondent no. 1. 26. In the circumstances, | 0[ds]As far as the first ground of challenge is concerned, as pointed out earlier, reliance was placed by the respondent no. 1 on the judgment of a Division Bench of Delhi High Court in Bhatia Tanning Industries (supra). Now, what had happened in this matter was that the respondent/industries were to supply certain material to the appellant, and since the respondent had committed default in making the supply, the appellant had raised a claim on account of risk purchase which was referred to arbitration. The arbitrator sent notices to the address of the respondents on record twice, and on both occasions the registered notices were returned to the arbitrator stating that the addressee was not available. It was in these circumstances that the arbitrator ordered that there shall be a publication of the notice in a newspaper. That having being done, nobody appeared for the respondent thereafter also, and the arbitrator made an ex-parte award. After the award was filed in court, and notice was sent to the respondent, an objection was raised that the arbitrator had no power to order service by means of publication in the newspaper. The learned Single Judge who heard the matter, set aside the award on the ground that the arbitrator should have gone to the court under Section 43 of the Arbitration Act, 1940 (Act of 1940 for short), and obtained an order from the Court for service by publication which had not beentherefore, fail to see as to how this judgment can advance the submission of the appellant, though it was contended that Section 27 of the Act of 1996 is similar to Section 43 of the Act of 1940. On the other hand, as stated above, the Division Bench judgment of Delhi High Court clearly lays down that Section 43 of the pre-cursor Act permitted the arbitrator to call a third person as well as a party as a witness, and the section was not confined only to calling third persons asis one more aspect which we must note, i.e., when the first respondent made an application for production of the assessment orders, the defence taken by the appellant in their affidavit dated 16.9.2011 was that those documents were confidential documents, and could not be directed to be produced. It was not stated at that time that the said documents were not available. It is ten months thereafter, that when the second affidavit was filed in the High Court, that the respondent for the first time contended that the said documents were not available. This was clearly an after thought, and this attitude of the Respondent in a way justified the earlier order permitting an application under Section 27 passed by the Arbitral Tribunal. The Assistant Commissioner of Sales Tax of the concerned area was also joined as respondent so that he could be directed to produce the required documents. However, he reported that those documents were old records, and were destroyed. The learned Single Judge did not pass any order against the respondent No.2 to produce the documents, as sought. However, the learned Single Judge rightly allowed the petition as against the appellant in terms of prayer clausedirecting the appellant to produce the documents which were sought by the respondent no. 1. | 0 | 5,976 | 596 | ### 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:
if necessary the same can be used. However, as observed by the learned Arbitrator in her order dated 27.3.2007, the documents sought in the present matter were required to arrive at the decision on the claim of the respondent no. 1, since, the quantification in support of the claim had been done by the respondent no. 1 on a theoretical basis. A hypothetical calculation should not be resorted to when actual Sales Tax Assessments are available, which would show as to whether the quantum of set-off allowed and claimed was in fact justified. 22. In the circumstances, there is no substance in the first objection viz. an order passed by the earlier Arbitrator dated 27.3.2007, and the subsequent enabling order passed by the Arbitral Tribunal dated 16.9.2011 permitting the respondent to apply under Section 27 could not have been passed. 23. The second objection was that the assessment orders were confidential documents, and Section 71 of the Maharashtra Value Added Tax, 2002 and its pre-cursor Section 64 of the Bombay Sales Tax Act, did not permit production of these documents, and a direction as sought could not have been granted. Since, these two sections are invoked, the relevant part of both the sections are quoted below. “Section 71 (1) – All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act (other than proceeding before a Criminal Court) or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act shall, save as provided in sub-section (3), be treated as confidential; and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to given evidence before it in respect thereof.”“Section 64 (1) – All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act (other than proceeding before a Criminal Court) or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act shall, save as provided in sub-section (3), be treated as confidential; and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to given evidence before it in respect thereof.” 24. If we look at the words used in these two sections, they very clearly state that particulars contained in any return or statement made by a party, or document produced along therewith are confidential, and no court shall pass any order requiring the Government or a Government servant to produce any such statement, document or return. It is a settled principle of law that the words used in a statute are to be read as they are used, to the extent possible, to ascertain the meaning thereof. Both these provisions contained a bar only against the Government officers from producing the documents mentioned therein. There is no bar therein against a party to produce any such document. In Tulsiram Sanganaria and Another v. Srimati Anni Rai and Ors. reported in 1971 (1) SCC 284 , a bench of three Judges of this Court interpreted an identical provision in Section 54(1) of the Income Tax Act, 1922, and held that the said provision created a bar on the production of the documents mentioned therein by the officials and other servants of the Income Tax Department, and made it obligatory on them to treat as confidential the records and documents mentioned therein, but the assessee or his representative-in-interest could produce assessment orders as evidence, and such evidence was admissible. Thus, if a claim is to be decided on the basis of an order of assessment, the claimant as well cannot be denied the right to seek a direction to the party concerned to produce the assessment order. It is this very prayer which has been allowed by the earlier order dated 27.3.2007 passed by the then Arbitrator, and also by the subsequent order dated 16.9.2011 passed by the Arbitral Tribunal, and in our view rightly so. There is no substance in the second objection as well. 25. There is one more aspect which we must note, i.e., when the first respondent made an application for production of the assessment orders, the defence taken by the appellant in their affidavit dated 16.9.2011 was that those documents were confidential documents, and could not be directed to be produced. It was not stated at that time that the said documents were not available. It is ten months thereafter, that when the second affidavit was filed in the High Court, that the respondent for the first time contended that the said documents were not available. This was clearly an after thought, and this attitude of the Respondent in a way justified the earlier order permitting an application under Section 27 passed by the Arbitral Tribunal. The Assistant Commissioner of Sales Tax of the concerned area was also joined as respondent so that he could be directed to produce the required documents. However, he reported that those documents were old records, and were destroyed. The learned Single Judge did not pass any order against the respondent No.2 to produce the documents, as sought. However, the learned Single Judge rightly allowed the petition as against the appellant in terms of prayer clause ‘A’, directing the appellant to produce the documents which were sought by the respondent no. 1. 26. In the circumstances,
### Response:
0
### Explanation:
As far as the first ground of challenge is concerned, as pointed out earlier, reliance was placed by the respondent no. 1 on the judgment of a Division Bench of Delhi High Court in Bhatia Tanning Industries (supra). Now, what had happened in this matter was that the respondent/industries were to supply certain material to the appellant, and since the respondent had committed default in making the supply, the appellant had raised a claim on account of risk purchase which was referred to arbitration. The arbitrator sent notices to the address of the respondents on record twice, and on both occasions the registered notices were returned to the arbitrator stating that the addressee was not available. It was in these circumstances that the arbitrator ordered that there shall be a publication of the notice in a newspaper. That having being done, nobody appeared for the respondent thereafter also, and the arbitrator made an ex-parte award. After the award was filed in court, and notice was sent to the respondent, an objection was raised that the arbitrator had no power to order service by means of publication in the newspaper. The learned Single Judge who heard the matter, set aside the award on the ground that the arbitrator should have gone to the court under Section 43 of the Arbitration Act, 1940 (Act of 1940 for short), and obtained an order from the Court for service by publication which had not beentherefore, fail to see as to how this judgment can advance the submission of the appellant, though it was contended that Section 27 of the Act of 1996 is similar to Section 43 of the Act of 1940. On the other hand, as stated above, the Division Bench judgment of Delhi High Court clearly lays down that Section 43 of the pre-cursor Act permitted the arbitrator to call a third person as well as a party as a witness, and the section was not confined only to calling third persons asis one more aspect which we must note, i.e., when the first respondent made an application for production of the assessment orders, the defence taken by the appellant in their affidavit dated 16.9.2011 was that those documents were confidential documents, and could not be directed to be produced. It was not stated at that time that the said documents were not available. It is ten months thereafter, that when the second affidavit was filed in the High Court, that the respondent for the first time contended that the said documents were not available. This was clearly an after thought, and this attitude of the Respondent in a way justified the earlier order permitting an application under Section 27 passed by the Arbitral Tribunal. The Assistant Commissioner of Sales Tax of the concerned area was also joined as respondent so that he could be directed to produce the required documents. However, he reported that those documents were old records, and were destroyed. The learned Single Judge did not pass any order against the respondent No.2 to produce the documents, as sought. However, the learned Single Judge rightly allowed the petition as against the appellant in terms of prayer clausedirecting the appellant to produce the documents which were sought by the respondent no. 1.
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Prakash Chandumal Khatri Vs. Suresh Pahilajrai Makhija | the Tribunal on the date of coming into operation of 1988 Act.7. Shri Agrawal invited our attention to the decision of single Judge reported in AIR 1986 Bombay 280 (Oriental Fire and General Insurance Co. Ltd., Goa v. Aleixo Fernandes) where it was held that the provisions of Section 92A of 1939 Act are retrospective in operation. The correctness of the decision of the single Judge was doubted by Division Bench of this Court in a judgment reported in AIR 1989 Bombay 325 (Indarjeet Singh and Co. v. Kamal Prakash Pawar). In our judgment, the conclusion of the single Judge that the provisions of Section 92A of 1939 Act were retrospective in nature is clearly erroneous. The liability to pay compensation on the doctrine of no fault liability can accrue only on the date of accident and in case the statutory provisions for payment of such compensation were not available on the date of the accident then the claimant cannot seek relief on that count. The issue is no longer res integra in view of the decision of the Supreme Court, reported in 1990 (1) Supreme Court Cases 356 (R. L. Gupta v. Jupitor General Insurance Company) where Mr. Justice Ranganath Misra, as he then was, speaking for the Bench observed that the compensation under the principle of no fault liability provided by the statute is prospective in operation. In our judgment, the reliance by Shri Agrawal on the decision of the single Judge is not correct and the decision relied upon is no longer a good law. Shri Agrawal placed strong reliance upon the decision of the Division Bench of Kerala High Court reported in 1990 Accidents Claims Journal 751 (United India Insurance Co. Ltd. v. Padmavathy) where Kerala High Court held that provisions of Section 140 of 1988 Act have retrospective application and the claimant is entitled to demand additional compensation than one prescribed under Section 92A of 1939 Act. The Kerala High Court was impressed by the fact that though Section 140 did not create a fresh right, it provided for enhancement of compensation due to errosion of value of currency and inflation in prices and costs. The Kerala High Court felt that the Parliament had retained the same right which has been conferred on the victim under Section 92A of 1939 Act but enhanced the compensation amount to make the right realistic. With respect, the Kerala High Court was right in observing that the Parliament increased the amount of compensation under the principle of no fault liability because of erosion of value of currency but we are unable to share the view that the said fact is enough to warrant the conclusion that the liability to pay enhanced compensation is retrospective in operation. With respect, such a view overlooks that the right and the corresponding liability accrues on the date of accident and that cause of action cannot be made dependent upon the legislative changes which may be effected during the pendency of the proceedings for seeking compensation. The liability is crystallised the moment the accident takes place and the person discharging the liability knows the quantum of compensation payable. The mere fact that such a compensation is not paid on the date of the accident or the application seeking compensation remains pending till the date of amendment of legislative provision prescribing enhanced compensation, cannot alter or impose additional liability or create any new right to demand additional compensation. We are, therefore, unable to agree with the view taken by the Kerala High Court.8. Shri Agrawal referred to the provisions of Section 144 of 1988 Act arid urged that the Section prescribes that the provisions of Chapter X shall have effect notwithstanding contained in any of the provisions of the Act or of any other Act for the time being in force. The learned counsel urged that Section 144 indicates that the liability to pay compensation at the rate prescribed under sub-section (2) of Section 140 must prevail over any of the provisions of any other law and that includes provisions of Section 92A of 1939 Act. It is not possible to accede to the submission because Section 144 does not take in its sweep the provisions of 1939 Act. An identical provision as Section 144 was enacted under Section 92E of 1939 Act and, in our judgment, both Section 92E and Section 144 referred to the right to claim compensation under any of the provisions of the Act or any other law for the time being in force and this right is independent of right to claim compensation on the principle of no fault liability. It would be appropriate to make reference to the provisions of Section 6(6) of the General Clauses Act, 1897 which, inter alia, provides that where any Central Act is repealed, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, therefore, obvious that the liability accrued during the operation of the Act of 1939 cannot be increased by reference to the provisions of sub-section (2) of Section 140 of 1988 Act as the said Act does not specifically or even by implication provides that the enhanced compensation is available even in respect of liability accrued under the repealed Act. In our judgment, the Tribunal was right in concluding that the appellants are entitled to compensation of only Rs. 15,000/- under no fault liability. Shri Agrawal submitted that the tribunal provided that in case the amount is not paid, within two weeks from the date of the, order, then the respondents shall pay interest at the rate of 12% per annum from the date of order till realisation. The learned counsel urged and, in our judgment, rightly that the interest should be made payable on the amount of Rs. 15,000/- right from the date of filing application for compensation i.e. December 17, 1988 and that modification is required in the order appealed against. | 1[ds]The right to receive compensation on the principle of no fault liability and the corresponding liability accrues on the date of the accident and is not made dependent on the legislative changes that may take place during the pendency of the application seeking compensation. In our judgment, on the first principle, it is not possible to accede to in the submission of Shri Agrawal that the provisions ofsubsection (2) of Section140 of the Act are retrospective in operation and would cover all the cases which are pending before the Tribunal on the date of coming into operation of 1988are, therefore, unable to agree with the view taken by the Kerala High Court.8. Shri Agrawal referred to the provisions of Section 144 of 1988 Act arid urged that the Section prescribes that the provisions of Chapter X shall have effect notwithstanding contained in any of the provisions of the Act or of any other Act for the time being in force. The learned counsel urged that Section 144 indicates that the liability to pay compensation at the rate prescribed undersubsection (2) of Section140 must prevail over any of the provisions of any other law and that includes provisions of Section 92A of 1939 Act. It is not possible to accede to the submission because Section 144 does not take in its sweep the provisions of 1939 Act. An identical provision as Section 144 was enacted under Section 92E of 1939 Act and, in our judgment, both Section 92E and Section 144 referred to the right to claim compensation under any of the provisions of the Act or any other law for the time being in force and this right is independent of right to claim compensation on the principle of no fault liability. It would be appropriate to make reference to the provisions of Section 6(6) of the General Clauses Act, 1897 which, inter alia, provides that where any Central Act is repealed, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, therefore, obvious that the liability accrued during the operation of the Act of 1939 cannot be increased by reference to the provisions ofsubsection (2) of Section140 of 1988 Act as the said Act does not specifically or even by implication provides that the enhanced compensation is available even in respect of liability accrued under the repealed Act. In our judgment, the Tribunal was right in concluding that the appellants are entitled to compensation of only Rs. 15,000/under no fault liability. Shri Agrawal submitted that the tribunal provided that in case the amount is not paid, within two weeks from the date of the, order, then the respondents shall pay interest at the rate of 12% per annum from the date of order till realisation. The learned counsel urged and, in our judgment, rightly that the interest should be made payable on the amount of Rs. 15,000/right from the date of filing application for compensation i.e. December 17, 1988 and that modification is required in the order appealed against. | 1 | 3,448 | 570 | ### 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 Tribunal on the date of coming into operation of 1988 Act.7. Shri Agrawal invited our attention to the decision of single Judge reported in AIR 1986 Bombay 280 (Oriental Fire and General Insurance Co. Ltd., Goa v. Aleixo Fernandes) where it was held that the provisions of Section 92A of 1939 Act are retrospective in operation. The correctness of the decision of the single Judge was doubted by Division Bench of this Court in a judgment reported in AIR 1989 Bombay 325 (Indarjeet Singh and Co. v. Kamal Prakash Pawar). In our judgment, the conclusion of the single Judge that the provisions of Section 92A of 1939 Act were retrospective in nature is clearly erroneous. The liability to pay compensation on the doctrine of no fault liability can accrue only on the date of accident and in case the statutory provisions for payment of such compensation were not available on the date of the accident then the claimant cannot seek relief on that count. The issue is no longer res integra in view of the decision of the Supreme Court, reported in 1990 (1) Supreme Court Cases 356 (R. L. Gupta v. Jupitor General Insurance Company) where Mr. Justice Ranganath Misra, as he then was, speaking for the Bench observed that the compensation under the principle of no fault liability provided by the statute is prospective in operation. In our judgment, the reliance by Shri Agrawal on the decision of the single Judge is not correct and the decision relied upon is no longer a good law. Shri Agrawal placed strong reliance upon the decision of the Division Bench of Kerala High Court reported in 1990 Accidents Claims Journal 751 (United India Insurance Co. Ltd. v. Padmavathy) where Kerala High Court held that provisions of Section 140 of 1988 Act have retrospective application and the claimant is entitled to demand additional compensation than one prescribed under Section 92A of 1939 Act. The Kerala High Court was impressed by the fact that though Section 140 did not create a fresh right, it provided for enhancement of compensation due to errosion of value of currency and inflation in prices and costs. The Kerala High Court felt that the Parliament had retained the same right which has been conferred on the victim under Section 92A of 1939 Act but enhanced the compensation amount to make the right realistic. With respect, the Kerala High Court was right in observing that the Parliament increased the amount of compensation under the principle of no fault liability because of erosion of value of currency but we are unable to share the view that the said fact is enough to warrant the conclusion that the liability to pay enhanced compensation is retrospective in operation. With respect, such a view overlooks that the right and the corresponding liability accrues on the date of accident and that cause of action cannot be made dependent upon the legislative changes which may be effected during the pendency of the proceedings for seeking compensation. The liability is crystallised the moment the accident takes place and the person discharging the liability knows the quantum of compensation payable. The mere fact that such a compensation is not paid on the date of the accident or the application seeking compensation remains pending till the date of amendment of legislative provision prescribing enhanced compensation, cannot alter or impose additional liability or create any new right to demand additional compensation. We are, therefore, unable to agree with the view taken by the Kerala High Court.8. Shri Agrawal referred to the provisions of Section 144 of 1988 Act arid urged that the Section prescribes that the provisions of Chapter X shall have effect notwithstanding contained in any of the provisions of the Act or of any other Act for the time being in force. The learned counsel urged that Section 144 indicates that the liability to pay compensation at the rate prescribed under sub-section (2) of Section 140 must prevail over any of the provisions of any other law and that includes provisions of Section 92A of 1939 Act. It is not possible to accede to the submission because Section 144 does not take in its sweep the provisions of 1939 Act. An identical provision as Section 144 was enacted under Section 92E of 1939 Act and, in our judgment, both Section 92E and Section 144 referred to the right to claim compensation under any of the provisions of the Act or any other law for the time being in force and this right is independent of right to claim compensation on the principle of no fault liability. It would be appropriate to make reference to the provisions of Section 6(6) of the General Clauses Act, 1897 which, inter alia, provides that where any Central Act is repealed, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, therefore, obvious that the liability accrued during the operation of the Act of 1939 cannot be increased by reference to the provisions of sub-section (2) of Section 140 of 1988 Act as the said Act does not specifically or even by implication provides that the enhanced compensation is available even in respect of liability accrued under the repealed Act. In our judgment, the Tribunal was right in concluding that the appellants are entitled to compensation of only Rs. 15,000/- under no fault liability. Shri Agrawal submitted that the tribunal provided that in case the amount is not paid, within two weeks from the date of the, order, then the respondents shall pay interest at the rate of 12% per annum from the date of order till realisation. The learned counsel urged and, in our judgment, rightly that the interest should be made payable on the amount of Rs. 15,000/- right from the date of filing application for compensation i.e. December 17, 1988 and that modification is required in the order appealed against.
### Response:
1
### Explanation:
The right to receive compensation on the principle of no fault liability and the corresponding liability accrues on the date of the accident and is not made dependent on the legislative changes that may take place during the pendency of the application seeking compensation. In our judgment, on the first principle, it is not possible to accede to in the submission of Shri Agrawal that the provisions ofsubsection (2) of Section140 of the Act are retrospective in operation and would cover all the cases which are pending before the Tribunal on the date of coming into operation of 1988are, therefore, unable to agree with the view taken by the Kerala High Court.8. Shri Agrawal referred to the provisions of Section 144 of 1988 Act arid urged that the Section prescribes that the provisions of Chapter X shall have effect notwithstanding contained in any of the provisions of the Act or of any other Act for the time being in force. The learned counsel urged that Section 144 indicates that the liability to pay compensation at the rate prescribed undersubsection (2) of Section140 must prevail over any of the provisions of any other law and that includes provisions of Section 92A of 1939 Act. It is not possible to accede to the submission because Section 144 does not take in its sweep the provisions of 1939 Act. An identical provision as Section 144 was enacted under Section 92E of 1939 Act and, in our judgment, both Section 92E and Section 144 referred to the right to claim compensation under any of the provisions of the Act or any other law for the time being in force and this right is independent of right to claim compensation on the principle of no fault liability. It would be appropriate to make reference to the provisions of Section 6(6) of the General Clauses Act, 1897 which, inter alia, provides that where any Central Act is repealed, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is, therefore, obvious that the liability accrued during the operation of the Act of 1939 cannot be increased by reference to the provisions ofsubsection (2) of Section140 of 1988 Act as the said Act does not specifically or even by implication provides that the enhanced compensation is available even in respect of liability accrued under the repealed Act. In our judgment, the Tribunal was right in concluding that the appellants are entitled to compensation of only Rs. 15,000/under no fault liability. Shri Agrawal submitted that the tribunal provided that in case the amount is not paid, within two weeks from the date of the, order, then the respondents shall pay interest at the rate of 12% per annum from the date of order till realisation. The learned counsel urged and, in our judgment, rightly that the interest should be made payable on the amount of Rs. 15,000/right from the date of filing application for compensation i.e. December 17, 1988 and that modification is required in the order appealed against.
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M/S. Pallava Granite Industries(I)P.Ltd Vs. Union Of India | above, G.O.No.1290 was a decision to grant a mining lease in favour of the appellants. Even assuming for the sake of the argument that G.O.No.1290 constituted a grant by itself still, as held in the above decisions, such a grant cannot fetter or hamper future executive action/decision to revoke the grant in public interest. In the present case, the State Government detected an important source of revenue in the form of granite reserves. It is true that at one point of time the State Government decided to exploit the granite through private parties. However, later on with globalization, the State Government decided to go for global tender. This course of action was open to the State Government. The State Government decided to exploit the granite through its agency, namely, APMDC. The object was to earn commercial profits and revenue. APMDC was given liberty either to excavate the granite on its own or through joint ventures. The land belongs to the State Government. The granite belongs to the State Government. Therefore, a mere decision in G.O.No.1290 to grant mining leases to the appellants cannot hamper or fetter the power of the Government to exploit the resources through its own agency. In the circumstances, we do not find any mala fides in the decision of the Government reserving the area admeasuring Acs.61.50 for exploitation by APMDC, either on its own or through its joint ventures/partners. 40. It has been vehemently urged before us on behalf of the appellants that the approval dated 29.10.99 contained in G.O.No.72 is invalid since Section 17A(2) of the 1957 Act does not contemplate conditional approval. In this connection, the following facts are required to be noted. The Central Government granted approval for reservation of an area admeasuring Acs.61.50 subject to two caveats, namely, that the reservation shall not be applicable in case of areas already held under any mining lease or quarry lease and that the approval was subject to the outcome of pending cases. It was submitted on behalf of the appellants that such conditional approval did not permit mining operations to be carried out by the State Government Corporation till the pending cases were decided and, therefore, if APMDC is allowed to exploit during the pendency of the cases then the conditional approval would have the effect of defeating the claims for mining leases in respect of the very area pending adjudication. We do not find any merit in these arguments. As stated above APMDC was entitled to enter into joint venture agreements with private partners. The alleged condition attached to the approval dated 29.10.99 was not to annul the transaction but only to render it subservient to the rights of the parties to the litigation. If the appellants were to succeed in the pending litigation they had the monetary claim against the joint venture. Therefore, in order to put the third parties to notice the above condition was incorporated. Such a condition did not make the approval a conditional approval and, therefore, it is not hit by Section 17A(2) of the 1957 Act. 41. We also do not find any merit in the contention of the appellant that the approval dated 29.10.99 granted by the Central Government stood vitiated on account of non-application of mind. In the approval granted by the Central Government dated 29.10.99 the subject-matter referred to four communications, namely, letter dated 24.10.97, letter dated 13.2.98, letter dated 5.11.98 and letter dated 23.12.98. These letters were addressed by the State Government. The initial proposal of the State Government was to reserve an area admeasuring Acs.61.50 only in Survey no.55/5 for exploitation by APMDC. However, later on in the last letter dated 23.12.98 the State Government proposed reservation for a larger area covering the entire granite bearing area to be exploited by the APMDC. It is equally true that while granting approval dated 29.10.99 the Central Government did not refer to the last proposal dated 23.12.98 and as a result gave its approval for reserving Acs.61.50 only. On that basis it is urged on behalf of the appellants that the Central Government had never applied its mind to the later proposal of the State Government and consequently even the approval granted for reserving a limited area of Acs.61.50 stood vitiated on account of non-application of mind. As stated above, the property belongs to the State Government. The mineral vests in the State Government. The State has decided to earn more revenue by inviting global tenders. The State has obtained the prior approval of the Central Government. The Central Government has restricted its approval to an area admeasuring Acs.61.50. In the circumstances, we do not find any illegality in the State Governments order of reserving the area admeasuring Acs.61.50 for mining operations through APMDC or through private/public sector enterprises. We reiterate that the rights, if any, under G.O.No.1290 were inchoate rights. These rights never stood crystallized. No mining lease was ever granted by the State Government to the appellants. In the circumstances, there was no bar in reserving an area admeasuring Acs.61.50 for exploitation of galaxy granite through State public sector undertaking. 42. Before concluding one aspect needs to be mentioned. During the pendency of these civil appeals, the State Government permitted exchange of areas between APMDC and M/s. Victorian Granite Pvt. Ltd. vide Memo dated 14.3.2006. This event took place during the pendency of the special leave petition. The question as to whether such an exchange required approval of the Central Government and whether such exchange was in the interest of the State exchequer, cannot be decided by us in the present proceedings. It is a distinct and separate cause of action. We do not wish to express any opinion on the validity of the said exchange as well as on the merits of the said exchange. It is for the Central Government to examine the validity of the said exchange. In any event, it is a subsequent cause of action. Hence, we express no opinion on the validity of the said exchange. | 0[ds]34. At the outset, we are of the view that G.O.No.1290 is not in the nature of the grant as alleged. In this connection we may recapitulate that the 1973 Act stood enacted to consolidate and amend the law relating to the fixation of ceiling on agricultural holdings and taking over the surplus lands. The land in question fell in the category of surplus lands. These surplus lands in Survey no.55/5 stood vested in the Government under the 1973 Act. These surplus lands were frozen under Prohibitory Order Book (POB). Subsequently it was detected that these lands contained galaxy granite. It was an important asset for the government. This aspect needed exploitation. Therefore, a proposal was made by the various authorities referred to above to release these lands from POB and to allow these lands to be exploited by private parties so that the State could earn revenue. Under the said 1973 Act these lands were meant for the benefit of the weaker sections. Therefore, they were kept under POB. However, in order to earn larger revenues the Government accepted the proposal to exploit thed granite. This is done through G.O.No.1290. This was the primary purpose of the said G.O. Conferment of rights on the appellants was not the main purpose of the said G.O. In fact, as stated above, the said G.O.No.1290 was issued on 27.8.91 and within one month it was withdrawn on 18.10.91. As stated above, when the said G.O. was issued on 27.8.91 a public interest litigation, Writ Petition No.2356 of 1991, was filed in the High Court. On receipt of notices from the High Court in the said PIL the said G.O. was withdrawn39. As stated above, G.O.No.1290 was a decision to grant a mining lease in favour of the appellants. Even assuming for the sake of the argument that G.O.No.1290 constituted a grant by itself still, as held in the above decisions, such a grant cannot fetter or hamper future executive action/decision to revoke the grant in public interest. In the present case, the State Government detected an important source of revenue in the form of granite reserves. It is true that at one point of time the State Government decided to exploit the granite through private parties. However, later on with globalization, the State Government decided to go for global tender. This course of action was open to the State Government. The State Government decided to exploit the granite through its agency, namely, APMDC. The object was to earn commercial profits and revenue. APMDC was given liberty either to excavate the granite on its own or through joint ventures. The land belongs to the State Government. The granite belongs to the State Government. Therefore, a mere decision in G.O.No.1290 to grant mining leases to the appellants cannot hamper or fetter the power of the Government to exploit the resources through its own agency. In the circumstances, we do not find any mala fides in the decision of the Government reserving the area admeasuring Acs.61.50 for exploitation by APMDC, either on its own or through its joint ventures/partners40. It has been vehemently urged before us on behalf of the appellants that the approval dated 29.10.99 contained in G.O.No.72 is invalid since Section 17A(2) of the 1957 Act does not contemplate conditional approval. In this connection, the following facts are required to be noted. The Central Government granted approval for reservation of an area admeasuring Acs.61.50 subject to two caveats, namely, that the reservation shall not be applicable in case of areas already held under any mining lease or quarry lease and that the approval was subject to the outcome of pending cases. It was submitted on behalf of the appellants that such conditional approval did not permit mining operations to be carried out by the State Government Corporation till the pending cases were decided and, therefore, if APMDC is allowed to exploit during the pendency of the cases then the conditional approval would have the effect of defeating the claims for mining leases in respect of the very area pending adjudication. We do not find any merit in these arguments. As stated above APMDC was entitled to enter into joint venture agreements with private partners. The alleged condition attached to the approval dated 29.10.99 was not to annul the transaction but only to render it subservient to the rights of the parties to the litigation. If the appellants were to succeed in the pending litigation they had the monetary claim against the joint venture. Therefore, in order to put the third parties to notice the above condition was incorporated. Such a condition did not make the approval a conditional approval and, therefore, it is not hit by Section 17A(2) of the 1957 Act41. We also do not find any merit in the contention of the appellant that the approval dated 29.10.99 granted by the Central Government stood vitiated on account ofn of mind. In the approval granted by the Central Government dated 29.10.99 ther referred to four communications, namely, letter dated 24.10.97, letter dated 13.2.98, letter dated 5.11.98 and letter dated 23.12.98. These letters were addressed by the State Government. The initial proposal of the State Government was to reserve an area admeasuring Acs.61.50 only in Survey no.55/5 for exploitation by APMDC. However, later on in the last letter dated 23.12.98 the State Government proposed reservation for a larger area covering the entire granite bearing area to be exploited by the APMDC. It is equally true that while granting approval dated 29.10.99 the Central Government did not refer to the last proposal dated 23.12.98 and as a result gave its approval for reserving Acs.61.50 only. On that basis it is urged on behalf of the appellants that the Central Government had never applied its mind to the later proposal of the State Government and consequently even the approval granted for reserving a limited area of Acs.61.50 stood vitiated on account ofn of mind. As stated above, the property belongs to the State Government. The mineral vests in the State Government. The State has decided to earn more revenue by inviting global tenders. The State has obtained the prior approval of the Central Government. The Central Government has restricted its approval to an area admeasuring Acs.61.50. In the circumstances, we do not find any illegality in the State Governments order of reserving the area admeasuring Acs.61.50 for mining operations through APMDC or through private/public sector enterprises. We reiterate that the rights, if any, under G.O.No.1290 were inchoate rights. These rights never stood crystallized. No mining lease was ever granted by the State Government to the appellants. In the circumstances, there was no bar in reserving an area admeasuring Acs.61.50 for exploitation of galaxy granite through State public sector undertaking42. Before concluding one aspect needs to be mentioned. During the pendency of these civil appeals, the State Government permitted exchange of areas between APMDC and M/s. Victorian Granite Pvt. Ltd. vide Memo dated 14.3.2006. This event took place during the pendency of the special leave petition. The question as to whether such an exchange required approval of the Central Government and whether such exchange was in the interest of the State exchequer, cannot be decided by us in the present proceedings. It is a distinct and separate cause of action. We do not wish to express any opinion on the validity of the said exchange as well as on the merits of the said exchange. It is for the Central Government to examine the validity of the said exchange. In any event, it is a subsequent cause of action. Hence, we express no opinion on the validity of the said exchange. | 0 | 7,811 | 1,404 | ### Instruction:
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above, G.O.No.1290 was a decision to grant a mining lease in favour of the appellants. Even assuming for the sake of the argument that G.O.No.1290 constituted a grant by itself still, as held in the above decisions, such a grant cannot fetter or hamper future executive action/decision to revoke the grant in public interest. In the present case, the State Government detected an important source of revenue in the form of granite reserves. It is true that at one point of time the State Government decided to exploit the granite through private parties. However, later on with globalization, the State Government decided to go for global tender. This course of action was open to the State Government. The State Government decided to exploit the granite through its agency, namely, APMDC. The object was to earn commercial profits and revenue. APMDC was given liberty either to excavate the granite on its own or through joint ventures. The land belongs to the State Government. The granite belongs to the State Government. Therefore, a mere decision in G.O.No.1290 to grant mining leases to the appellants cannot hamper or fetter the power of the Government to exploit the resources through its own agency. In the circumstances, we do not find any mala fides in the decision of the Government reserving the area admeasuring Acs.61.50 for exploitation by APMDC, either on its own or through its joint ventures/partners. 40. It has been vehemently urged before us on behalf of the appellants that the approval dated 29.10.99 contained in G.O.No.72 is invalid since Section 17A(2) of the 1957 Act does not contemplate conditional approval. In this connection, the following facts are required to be noted. The Central Government granted approval for reservation of an area admeasuring Acs.61.50 subject to two caveats, namely, that the reservation shall not be applicable in case of areas already held under any mining lease or quarry lease and that the approval was subject to the outcome of pending cases. It was submitted on behalf of the appellants that such conditional approval did not permit mining operations to be carried out by the State Government Corporation till the pending cases were decided and, therefore, if APMDC is allowed to exploit during the pendency of the cases then the conditional approval would have the effect of defeating the claims for mining leases in respect of the very area pending adjudication. We do not find any merit in these arguments. As stated above APMDC was entitled to enter into joint venture agreements with private partners. The alleged condition attached to the approval dated 29.10.99 was not to annul the transaction but only to render it subservient to the rights of the parties to the litigation. If the appellants were to succeed in the pending litigation they had the monetary claim against the joint venture. Therefore, in order to put the third parties to notice the above condition was incorporated. Such a condition did not make the approval a conditional approval and, therefore, it is not hit by Section 17A(2) of the 1957 Act. 41. We also do not find any merit in the contention of the appellant that the approval dated 29.10.99 granted by the Central Government stood vitiated on account of non-application of mind. In the approval granted by the Central Government dated 29.10.99 the subject-matter referred to four communications, namely, letter dated 24.10.97, letter dated 13.2.98, letter dated 5.11.98 and letter dated 23.12.98. These letters were addressed by the State Government. The initial proposal of the State Government was to reserve an area admeasuring Acs.61.50 only in Survey no.55/5 for exploitation by APMDC. However, later on in the last letter dated 23.12.98 the State Government proposed reservation for a larger area covering the entire granite bearing area to be exploited by the APMDC. It is equally true that while granting approval dated 29.10.99 the Central Government did not refer to the last proposal dated 23.12.98 and as a result gave its approval for reserving Acs.61.50 only. On that basis it is urged on behalf of the appellants that the Central Government had never applied its mind to the later proposal of the State Government and consequently even the approval granted for reserving a limited area of Acs.61.50 stood vitiated on account of non-application of mind. As stated above, the property belongs to the State Government. The mineral vests in the State Government. The State has decided to earn more revenue by inviting global tenders. The State has obtained the prior approval of the Central Government. The Central Government has restricted its approval to an area admeasuring Acs.61.50. In the circumstances, we do not find any illegality in the State Governments order of reserving the area admeasuring Acs.61.50 for mining operations through APMDC or through private/public sector enterprises. We reiterate that the rights, if any, under G.O.No.1290 were inchoate rights. These rights never stood crystallized. No mining lease was ever granted by the State Government to the appellants. In the circumstances, there was no bar in reserving an area admeasuring Acs.61.50 for exploitation of galaxy granite through State public sector undertaking. 42. Before concluding one aspect needs to be mentioned. During the pendency of these civil appeals, the State Government permitted exchange of areas between APMDC and M/s. Victorian Granite Pvt. Ltd. vide Memo dated 14.3.2006. This event took place during the pendency of the special leave petition. The question as to whether such an exchange required approval of the Central Government and whether such exchange was in the interest of the State exchequer, cannot be decided by us in the present proceedings. It is a distinct and separate cause of action. We do not wish to express any opinion on the validity of the said exchange as well as on the merits of the said exchange. It is for the Central Government to examine the validity of the said exchange. In any event, it is a subsequent cause of action. Hence, we express no opinion on the validity of the said exchange.
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said G.O. was withdrawn39. As stated above, G.O.No.1290 was a decision to grant a mining lease in favour of the appellants. Even assuming for the sake of the argument that G.O.No.1290 constituted a grant by itself still, as held in the above decisions, such a grant cannot fetter or hamper future executive action/decision to revoke the grant in public interest. In the present case, the State Government detected an important source of revenue in the form of granite reserves. It is true that at one point of time the State Government decided to exploit the granite through private parties. However, later on with globalization, the State Government decided to go for global tender. This course of action was open to the State Government. The State Government decided to exploit the granite through its agency, namely, APMDC. The object was to earn commercial profits and revenue. APMDC was given liberty either to excavate the granite on its own or through joint ventures. The land belongs to the State Government. The granite belongs to the State Government. Therefore, a mere decision in G.O.No.1290 to grant mining leases to the appellants cannot hamper or fetter the power of the Government to exploit the resources through its own agency. In the circumstances, we do not find any mala fides in the decision of the Government reserving the area admeasuring Acs.61.50 for exploitation by APMDC, either on its own or through its joint ventures/partners40. It has been vehemently urged before us on behalf of the appellants that the approval dated 29.10.99 contained in G.O.No.72 is invalid since Section 17A(2) of the 1957 Act does not contemplate conditional approval. In this connection, the following facts are required to be noted. The Central Government granted approval for reservation of an area admeasuring Acs.61.50 subject to two caveats, namely, that the reservation shall not be applicable in case of areas already held under any mining lease or quarry lease and that the approval was subject to the outcome of pending cases. It was submitted on behalf of the appellants that such conditional approval did not permit mining operations to be carried out by the State Government Corporation till the pending cases were decided and, therefore, if APMDC is allowed to exploit during the pendency of the cases then the conditional approval would have the effect of defeating the claims for mining leases in respect of the very area pending adjudication. We do not find any merit in these arguments. As stated above APMDC was entitled to enter into joint venture agreements with private partners. The alleged condition attached to the approval dated 29.10.99 was not to annul the transaction but only to render it subservient to the rights of the parties to the litigation. If the appellants were to succeed in the pending litigation they had the monetary claim against the joint venture. Therefore, in order to put the third parties to notice the above condition was incorporated. Such a condition did not make the approval a conditional approval and, therefore, it is not hit by Section 17A(2) of the 1957 Act41. We also do not find any merit in the contention of the appellant that the approval dated 29.10.99 granted by the Central Government stood vitiated on account ofn of mind. In the approval granted by the Central Government dated 29.10.99 ther referred to four communications, namely, letter dated 24.10.97, letter dated 13.2.98, letter dated 5.11.98 and letter dated 23.12.98. These letters were addressed by the State Government. The initial proposal of the State Government was to reserve an area admeasuring Acs.61.50 only in Survey no.55/5 for exploitation by APMDC. However, later on in the last letter dated 23.12.98 the State Government proposed reservation for a larger area covering the entire granite bearing area to be exploited by the APMDC. It is equally true that while granting approval dated 29.10.99 the Central Government did not refer to the last proposal dated 23.12.98 and as a result gave its approval for reserving Acs.61.50 only. On that basis it is urged on behalf of the appellants that the Central Government had never applied its mind to the later proposal of the State Government and consequently even the approval granted for reserving a limited area of Acs.61.50 stood vitiated on account ofn of mind. As stated above, the property belongs to the State Government. The mineral vests in the State Government. The State has decided to earn more revenue by inviting global tenders. The State has obtained the prior approval of the Central Government. The Central Government has restricted its approval to an area admeasuring Acs.61.50. In the circumstances, we do not find any illegality in the State Governments order of reserving the area admeasuring Acs.61.50 for mining operations through APMDC or through private/public sector enterprises. We reiterate that the rights, if any, under G.O.No.1290 were inchoate rights. These rights never stood crystallized. No mining lease was ever granted by the State Government to the appellants. In the circumstances, there was no bar in reserving an area admeasuring Acs.61.50 for exploitation of galaxy granite through State public sector undertaking42. Before concluding one aspect needs to be mentioned. During the pendency of these civil appeals, the State Government permitted exchange of areas between APMDC and M/s. Victorian Granite Pvt. Ltd. vide Memo dated 14.3.2006. This event took place during the pendency of the special leave petition. The question as to whether such an exchange required approval of the Central Government and whether such exchange was in the interest of the State exchequer, cannot be decided by us in the present proceedings. It is a distinct and separate cause of action. We do not wish to express any opinion on the validity of the said exchange as well as on the merits of the said exchange. It is for the Central Government to examine the validity of the said exchange. In any event, it is a subsequent cause of action. Hence, we express no opinion on the validity of the said exchange.
|
Income-Tax Officer, Alleppey Vs. M.C. Ponnoose & Ors | is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."The courts will not, therefore, ascribed retrospectively to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect.But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect: (See Subba Rao J., in Dr. Indramani Pyarelal Gupta v. W. R. Nathu, (1963) 1 SCR 721 = (AIR 1963 SC 274 )-the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. Commr. of Sales Tax, U. P., AIR 1956 All 35 ; India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326 and General S. Shivdev Singh v. State of Punjab, (1959) 61 Pun LR 514 = (AIR 1959 Punj 453) (FB)).6. It can hardly be said that the impugned notification promulgates any rule, regulation or bye-law all of which have a definite signification. The exercise of the power under sub-clause (ii) of Clause (44) of Section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation. In Strawboard Manufacturing Co. Ltd., v. Gutta Mill Workers Union 1953 SCR 439 = (AIR 1953 SC 95 ) an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award, however, was made on April 13, 1950. On April 26, 1950 the Governor issued a notification extending the time up to April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision, the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity.This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tahsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the notification.7. It may next be considered whether by saying that the new definition of "Tax Recovery Officer" substituted by S. 4 of the Finance Act 1963 "shall be and shall be deemed always to have been substituted" it could be said that by necessary implication or intendment the State Government had been authorised to invest the officers mentioned in the notification with the powers of a Tax Recovery Officer with retrospective effect.The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in Sec. 4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in Section 2 (44) of the Act itself.It may be noticed that in a recent decision of the Constitution Bench of this court in B. S. Vadera v. Union of India, AIR 1969 SC 118 it has been observed with reference to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that "any rules so made shall have effect subject to the provisions of any such Act". As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations. Moreover when the language employed in the main part of Article 309 is compared with that of the proviso it becomes clear that the power given to the legislature for laying down the conditions is identical with the power given to the President or the Governor, as the case may be, in the matter of regulating the recruitment of Government servants and their conditions of service. The legislature, however, can regulate the recruitment and conditions of service for all times whereas the President and the Governor can do so only till a provision in that behalf is made by or under an Act of the appropriate legislature. As the legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation.For these reasons the ambit and content of the rule-making power under Article 309 can furnish no analogy or parallel to the present case. The High Court was consequently right in coming to the conclusion that the action taken by the Tahsildar in attaching the shares was unsustainable. | 0[ds]6. It can hardly be said that the impugned notification promulgates any rule, regulation or bye-law all of which have a definite signification. The exercise of the power under sub-clause (ii) of Clause (44) of Section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospectiveStrawboard Manufacturing Co. Ltd., v. Gutta Mill Workers Union 1953 SCR 439 = (AIR 1953 SC 95 ) an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award, however, was made on April 13, 1950. On April 26, 1950 the Governor issued a notification extending the time up to April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision, the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity.This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tahsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from adate prior to the date of theonly effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in Sec. 4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in Section 2 (44) of the Act itself.It may be noticed that in a recent decision of the Constitution Bench of this court in B. S. Vadera v. Union of India, AIR 1969 SC 118 it has been observed with reference to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that "any rules so made shall have effect subject to the provisions of any such Act". As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations. Moreover when the language employed in the main part of Article 309 is compared with that of the proviso it becomes clear that the power given to the legislature for laying down the conditions is identical with the power given to the President or the Governor, as the case may be, in the matter of regulating the recruitment of Government servants and their conditions of service. The legislature, however, can regulate the recruitment and conditions of service for all times whereas the President and the Governor can do so only till a provision in that behalf is made by or under an Act of the appropriate legislature. As the legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation.For these reasons the ambit and content of the rule-making power under Article 309 can furnish no analogy or parallel to the present case. The High Court was consequently right in coming to the conclusion that the action taken by the Tahsildar in attaching the shares was unsustainable. | 0 | 1,948 | 707 | ### Instruction:
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is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."The courts will not, therefore, ascribed retrospectively to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect.But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect: (See Subba Rao J., in Dr. Indramani Pyarelal Gupta v. W. R. Nathu, (1963) 1 SCR 721 = (AIR 1963 SC 274 )-the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. Commr. of Sales Tax, U. P., AIR 1956 All 35 ; India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326 and General S. Shivdev Singh v. State of Punjab, (1959) 61 Pun LR 514 = (AIR 1959 Punj 453) (FB)).6. It can hardly be said that the impugned notification promulgates any rule, regulation or bye-law all of which have a definite signification. The exercise of the power under sub-clause (ii) of Clause (44) of Section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation. In Strawboard Manufacturing Co. Ltd., v. Gutta Mill Workers Union 1953 SCR 439 = (AIR 1953 SC 95 ) an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award, however, was made on April 13, 1950. On April 26, 1950 the Governor issued a notification extending the time up to April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision, the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity.This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tahsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the notification.7. It may next be considered whether by saying that the new definition of "Tax Recovery Officer" substituted by S. 4 of the Finance Act 1963 "shall be and shall be deemed always to have been substituted" it could be said that by necessary implication or intendment the State Government had been authorised to invest the officers mentioned in the notification with the powers of a Tax Recovery Officer with retrospective effect.The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in Sec. 4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in Section 2 (44) of the Act itself.It may be noticed that in a recent decision of the Constitution Bench of this court in B. S. Vadera v. Union of India, AIR 1969 SC 118 it has been observed with reference to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that "any rules so made shall have effect subject to the provisions of any such Act". As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations. Moreover when the language employed in the main part of Article 309 is compared with that of the proviso it becomes clear that the power given to the legislature for laying down the conditions is identical with the power given to the President or the Governor, as the case may be, in the matter of regulating the recruitment of Government servants and their conditions of service. The legislature, however, can regulate the recruitment and conditions of service for all times whereas the President and the Governor can do so only till a provision in that behalf is made by or under an Act of the appropriate legislature. As the legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation.For these reasons the ambit and content of the rule-making power under Article 309 can furnish no analogy or parallel to the present case. The High Court was consequently right in coming to the conclusion that the action taken by the Tahsildar in attaching the shares was unsustainable.
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6. It can hardly be said that the impugned notification promulgates any rule, regulation or bye-law all of which have a definite signification. The exercise of the power under sub-clause (ii) of Clause (44) of Section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospectiveStrawboard Manufacturing Co. Ltd., v. Gutta Mill Workers Union 1953 SCR 439 = (AIR 1953 SC 95 ) an industrial dispute had been referred by the Governor to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award, however, was made on April 13, 1950. On April 26, 1950 the Governor issued a notification extending the time up to April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator could pronounce the decision, the State Government had no authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity.This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tahsildar could be authorised by the impugned notification to exercise powers of a Tax Recovery Officer with effect from adate prior to the date of theonly effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction could not be extended beyond its legitimate field and the aforesaid words occurring in Sec. 4 of the Finance Act 1963 could not be construed to embody conferment of a power for a retrospective authorisation by the State in the absence of any express provision in Section 2 (44) of the Act itself.It may be noticed that in a recent decision of the Constitution Bench of this court in B. S. Vadera v. Union of India, AIR 1969 SC 118 it has been observed with reference to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that "any rules so made shall have effect subject to the provisions of any such Act". As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations. Moreover when the language employed in the main part of Article 309 is compared with that of the proviso it becomes clear that the power given to the legislature for laying down the conditions is identical with the power given to the President or the Governor, as the case may be, in the matter of regulating the recruitment of Government servants and their conditions of service. The legislature, however, can regulate the recruitment and conditions of service for all times whereas the President and the Governor can do so only till a provision in that behalf is made by or under an Act of the appropriate legislature. As the legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation.For these reasons the ambit and content of the rule-making power under Article 309 can furnish no analogy or parallel to the present case. The High Court was consequently right in coming to the conclusion that the action taken by the Tahsildar in attaching the shares was unsustainable.
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K.A. Annamma Vs. The Secretary, Cochin Co-operative Hospital Society Ltd | amending one by Act 1/2000 brought about any kind of inconsistency or repugnancy between the provisions of the KCS Act and the ID Act such as the one brought about by the second Amendment Act (2/2000) in Section 70 of Karnataka CS Act w.e.f. 20.06.2000 qua the ID Act and had such amended provisions of the KCS Act received the Assent of the President, the provisions of the KCS Act too would have prevailed over the ID Act in the State by virtue of Article 254 (2) of the Constitution.93. Such is not the case here because though the KCS Act received the Assent of the President at the time of its enactment so also the Karnataka CS Act received, this Court while interpreting Section 70 as amended by Act No.19/1976 of the Karnataka CS Act with the Assent of the Governor, has held in Dharappa’s case that Section 70 did not create any inconsistency or/and repugnancy with any provisions of the ID Act and possessed concurrent jurisdiction over such service dispute. This ratio of Dharappa’s case would apply to Section 69 of the KCS Act because we have held that Section 69 is in pari materia with Section 70 of the Karnataka CS Act.94. That apart, the amending KCS Act (1 of 2000) having received the Assent of the Governor did not bring about any inconsistency or repugnancy with the provisions of the ID Act. In any event, in the absence of the Assent of the President to the amending KCS Act 1/2000, even if any inconsistency or repugnancy exists between the provisions of the KCS Act and the ID Act, it is the ID Act which will prevail over the KCS Act by virtue of Article 254 (1) of the Constitution but not vice-a-versa.95. The law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by the Parliament and the State Legislature on the same subject, which falls in List III - Concurrent list.96. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the Assent of the President will prevail over the Central Act in the concerned State by virtue of Article 254 (2) of the Constitution.97. A fortiori, in such a situation, if the State Act has received the Assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254 (1) of the Constitution.98. It is this principle, which was applied by this Court in the case of Dharappa while comparing the provisions of the Karnataka CS Act including its two amendments with that of the provisions of the ID Act.99. This takes us to examine another question. The majority Judges, as we find, proceeded to examine the questions by attempting to compare the language employed in the relevant Sections of the two repealed KCS Acts of 1932 and 1951 with that of the language of Section 69 of the KCS Act 1969 and noticing some departure in the language employed in Section 69, came to a conclusion that the language of Section 69 is comprehensive enough to exclude the jurisdiction of the Labour Court under the ID Act. The majority Judges also took note of some more Sections of the KCS Act and noticing some dis-similarity in the scheme of the KCS Act and Karnataka CS Act held that Section 69 of the KCS Act overrides the provisions of the ID Act since inception. We find ourselves unable to agree with the approach of the majority.100. In our view, when this Court in Dharappa’s case has interpreted the language of Section 70 of the Karnataka CS Act, the questions involved herein should have been examined by comparing the language employed in Section 69 of the KCS Act with the language employed in Section 70 of the Karnataka CS Act rather than to compare with the repealed provisions.101. In other words, once on comparing the language of Section 69 and that of Section 70 as amended by the first amendment, a conclusion is reached that both Sections are akin to each other till 20.06.2000, a fortiori, the law laid down in Dharappa’s case insofar as it interprets Section 70 as it originally stood and amended by Amendment Act 19/1976 would apply to Section 69 of the KCS Act. On the other hand, the ratio will not apply after 20.06.2000 because from that date, there was a change in the language of Section 70 which provided a clause to exclude the Jurisdiction of other Courts in express terms by Amendment Act of 2/2000.102. In the light of foregoing discussion, we are of the considered opinion that the view of majority Judges cannot be upheld whereas the view of the minority Judges deserves to be upheld and is accordingly upheld.103. We accordingly hold that the KCS Act and the ID Act both possess and enjoy the concurrent jurisdiction to decide any service dispute arising between the Co-operative Society’s Employee and his/her Employer (Co-operative Society).104. We also hold that it is the choice of the Employee concerned to choose any one forum out of the two forums available to him/her under the two Acts (the KCS Act and the I.D. Act) to get his/her service dispute decided. It is, however, subject to satisfying the test laid down under the ID Act that the employee concerned is a “workman”, the dispute raised by him/her is an “industrial dispute” and the Co-operative Society (Employer) is an “Industry” as defined under the ID Act. | 1[ds]19. By order dated 14.09.2015, theBench answered the questions referred in the case of Chirayinkeezhu Services Cooperative Bank Ltd. vs. Santosh, 2015(4) KLT 163(LB). However, there was a difference of opinion amongst the five Judges (3:2) on the questions referred.20. So far as the majority view of three Judges is concerned, it held that the service dispute arising between thes Employee and the EmployerSociety) is triable only by the forum prescribed under the KCS Act, 1969 and the jurisdiction of the ID Act is excluded and barred to try such service dispute.21. So far as the minority view of two Judges is concerned, it held that such service dispute is triable under both the Acts, i.e., the KCS Act and the ID Act. In other words, it held that both the Acts possess and enjoy concurrent jurisdiction to decide such service dispute and it is for the aggrieved person to choose the forum of his/her choice out of the two Acts to get the service dispute settled subject to proving the ingredients of the definition of "Workman", "Industrial Dispute" and the cooperative Society to be theas defined under the ID Act, if he/she desires to invoke the jurisdiction of the ID Act for deciding the service dispute.dispute.21. So far as the minority view of two Judges is concerned, it held that such service dispute is triable under both the Acts, i.e., the KCS Act and the ID Act. In other words, it held that both the Acts possess and enjoy concurrent jurisdiction to decide such service dispute and it is for the aggrieved person to choose the forum of his/her choice out of the two Acts to get the service dispute settled subject to proving the ingredients of the definition of "Workman", "Industrial Dispute" and the cooperative Society to be theas defined under the ID Act, if he/she desires to invoke the jurisdiction of the ID Act for deciding the service dispute.Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of learned counsel for the appellant (Employee).31. In our considered view, we are inclined to uphold the minority view for the reasons given infra.We find that both majority and minority Judges examined the questions largely in the light of the ratio laid down by this Court incase (supra). Indeed, the learned counsel, in their submissions before us, did not make any attempt to contend that the law laid down in the case of Dharappa (supra) needs reconsideration on any issue. On the other hand, both sides proceeded to make their submissions that, firstly,case has laid down the correct principle of law on facts involved therein and secondly, what needs to be examined is whether its ratio applies to the facts of this case and, if so, how and to what extent.35. In our opinion also, it may not be necessary to examine the issue involved in this case in the light of any other decision except confining its examination to the ratio laid down incase has discussed all earlier decisions of this Court on the subject in extenso.So far as the view of minority Judges (2) is concerned, in substance, it held:47. First, the question involved in the case is squarely covered by the ratio laid down incase.48. Second, Section 69 of the KCS Act and Section 70 as it originally stood and as amended by first Amendment Act (19 of 1976) of the Karnataka CS Act, are identically worded and, therefore, the ratio ofcase would apply while interpreting Section 69 of the KCS Act.49. Third, the Assent of the President was required for passing the Amendment Act No.1 of 2000 of the KCS Act.50. Fourth, since no Assent of the President was obtained, the Amendment Act (1 of 2000) did not make any effect on the exclusion of the jurisdiction of the forum under the ID Act. That apart, Section 69 or Section 100 of the KCS Act also does not have a clause akin to Section 70 of the Karnataka CS Act as amended by Amendment Act (2 of 2000) providing therein a clause for express exclusion of the jurisdiction of the Civil Court, the Labour Court and the Industrial Tribunal from deciding the service dispute.51. Fifth, the jurisdiction of Section 69 under the KCS Act before and after the amendment of the KCS Act by Amendment Act (1 of 2000) remains intact.52. Sixth, the jurisdiction of both the Acts, i.e., the KCS Act and the ID Act is concurrent.53. A fortiori, any service dispute arising between as Employee and his/here Society) is triable under both the Acts and it is for the aggrieved person to select one forum of his/her choice out of the two to get his/her dispute settled subject to proving that he/she is a workman, the dispute is an industrial dispute and the Cooperative Society is an industry as defined in the ID Act.54. Seventh, notwithstanding the amendment brought about in Section 69 of the KCS Act by Amendment Act (1 of 2000), the jurisdiction of the Labour Court under the ID Act is not excluded and thus not barred.55. And lastly, in the light of these findings, all decided cases taking this view are held correctly decided and, therefore, do not need any reconsideration.56. In our opinion, the fate of this appeal depends upon the question as to what extent the ratio ofcase applies to the issues involved in the case at hand.Now coming to the facts of the case at hand, when we examine the question in the light of the ratio ofcase, culled out above, on comparison, we find substantial similarity between the language of Section 69 of the KCS Act as it originally stood and later amended by the Amendment Act 1 of 2000 with that of the language employed in Section 70 of the Karnataka CS Act as it originally stood along with amended one by first Amendment Act 19/ 1976.83. In other words, we notice that the phraseology and language of both unamended and amended Section 69 of KCS Act and Section 70 of the Karnataka CS Act as amended by first amendment by Act 1/2000 are in pari materia with each other.This, in our view, indicates that till 20.06.2000, there was similarity between the KCS Act and Karnataka CS Act. However, after Section 70 was amended by Act No.2/2000 w.e.f. 20.06.2000 providing therein a specific clause expressly excluding the jurisdiction of the Civil, Labour and Revenue Court and Industrial Tribunal to decide the service disputes, the scheme of the two Acts no longer remained similar.90. Similarly, we find that the identical wording occurring in the beginning and the end of Section 69 and Section 70 was interpreted incase wherein it was held that such provisions cannot be construed as providing an express exclusion of the jurisdiction of other Courts including that of the Labour Court and the Industrial Tribunal under the ID Act. On the other hand, it was held that the Karnataka CS Act possesses concurrent jurisdiction for deciding the services disputes upto 20.06.2000. (see para 14/16 of Dharappa)91. This interpretation ofcase, in our view, would squarely apply to the provisions of the KCS Act if Section 69 is also suitably amended by the State of Kerala by making Section 69 at par with amended Section 70 of Karnataka CS Act. As on date, it is not so.92. Though the KCS Act was amended by Amendment Act 1 of 2000 (w.e.f. 02.01.2003) but it did not bring about any kind of inconsistency or repugnancy in the KCS Act qua any provision of the ID Act, 1947. Had the KCS Act including the amending one by Act 1/2000 brought about any kind of inconsistency or repugnancy between the provisions of the KCS Act and the ID Act such as the one brought about by the second Amendment Act (2/2000) in Section 70 of Karnataka CS Act w.e.f. 20.06.2000 qua the ID Act and had such amended provisions of the KCS Act received the Assent of the President, the provisions of the KCS Act too would have prevailed over the ID Act in the State by virtue of Article 254 (2) of the Constitution.93. Such is not the case here because though the KCS Act received the Assent of the President at the time of its enactment so also the Karnataka CS Act received, this Court while interpreting Section 70 as amended by Act No.19/1976 of the Karnataka CS Act with the Assent of the Governor, has held incase that Section 70 did not create any inconsistency or/and repugnancy with any provisions of the ID Act and possessed concurrent jurisdiction over such service dispute. This ratio ofThe law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by the Parliament and the State Legislature on the same subject, which falls in List IIIConcurrent list.96. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the Assent of the President will prevail over the Central Act in the concerned State by virtue of Article 254 (2) of the Constitution.97. A fortiori, in such a situation, if the State Act has received the Assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254 (1) of the Constitution.98. It is this principle, which was applied by this Court in the case of Dharappa while comparing the provisions of the Karnataka CS Act including its two amendments with that of the provisions of the ID Act.99. This takes us to examine another question. The majority Judges, as we find, proceeded to examine the questions by attempting to compare the language employed in the relevant Sections of the two repealed KCS Acts of 1932 and 1951 with that of the language of Section 69 of the KCS Act 1969 and noticing some departure in the language employed in Section 69, came to a conclusion that the language of Section 69 is comprehensive enough to exclude the jurisdiction of the Labour Court under the ID Act. The majority Judges also took note of some more Sections of the KCS Act and noticing somein the scheme of the KCS Act and Karnataka CS Act held that Section 69 of the KCS Act overrides the provisions of the ID Act since inception. We find ourselves unable to agree with the approach of the majority.100. In our view, when this Court incase has interpreted the language of Section 70 of the Karnataka CS Act, the questions involved herein should have been examined by comparing the language employed in Section 69 of the KCS Act with the language employed in Section 70 of the Karnataka CS Act rather than to compare with the repealed provisions.101. In other words, once on comparing the language of Section 69 and that of Section 70 as amended by the first amendment, a conclusion is reached that both Sections are akin to each other till 20.06.2000, a fortiori, the law laid down incase insofar as it interprets Section 70 as it originally stood and amended by Amendment Act 19/1976 would apply to Section 69 of the KCS Act. On the other hand, the ratio will not apply after 20.06.2000 because from that date, there was a change in the language of Section 70 which provided a clause to exclude the Jurisdiction of other Courts in express terms by Amendment Act of 2/2000.102. In the light of foregoing discussion, we are of the considered opinion that the view of majority Judges cannot be upheld whereas the view of the minority Judges deserves to be upheld and is accordingly upheld.103. We accordingly hold that the KCS Act and the ID Act both possess and enjoy the concurrent jurisdiction to decide any service dispute arising between thes Employee and his/here Society).104. We also hold that it is the choice of the Employee concerned to choose any one forum out of the two forums available to him/her under the two Acts (the KCS Act and the I.D. Act) to get his/her service dispute decided. It is, however, subject to satisfying the test laid down under the ID Act that the employee concerned is athe dispute raised by him/her is annd the Cooperative Society(Employer) is anas defined under the ID Act.In our considered opinion, the ratio ofcase is that firstly, Section 70 of the Karnataka CS Act as it originally stood and amended by first Amendment Act 19 of 1976 adding therein two clauses (d) and (e) to Section 70, whether one reads it independently or/and in juxtaposition with other Sections would find that it did not provide for express ouster or exclusion of the jurisdiction of the Labour Court/Industrial Tribunal under the ID Act.Similarly, we find that the identical wording occurring in the beginning and the end of Section 69 and Section 70 was interpreted ine wherein it was held that such provisions cannot be construed as providing an express exclusion of the jurisdiction of other Courts including that of the Labour Court and the Industrial Tribunal under the ID Act. On the other hand, it was held that the Karnataka CS Act possesses concurrent jurisdiction for deciding the services disputes upto 20.06.2000. (see para 14/16 of Dharappa)91. This interpretation of, in our view, would squarely apply to the provisions of the KCS Act if Section 69 is also suitably amended by the State of Kerala by making Section 69 at par with amended Section 70 of Karnataka CS Act. As on date, it is not so. | 1 | 10,143 | 2,577 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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amending one by Act 1/2000 brought about any kind of inconsistency or repugnancy between the provisions of the KCS Act and the ID Act such as the one brought about by the second Amendment Act (2/2000) in Section 70 of Karnataka CS Act w.e.f. 20.06.2000 qua the ID Act and had such amended provisions of the KCS Act received the Assent of the President, the provisions of the KCS Act too would have prevailed over the ID Act in the State by virtue of Article 254 (2) of the Constitution.93. Such is not the case here because though the KCS Act received the Assent of the President at the time of its enactment so also the Karnataka CS Act received, this Court while interpreting Section 70 as amended by Act No.19/1976 of the Karnataka CS Act with the Assent of the Governor, has held in Dharappa’s case that Section 70 did not create any inconsistency or/and repugnancy with any provisions of the ID Act and possessed concurrent jurisdiction over such service dispute. This ratio of Dharappa’s case would apply to Section 69 of the KCS Act because we have held that Section 69 is in pari materia with Section 70 of the Karnataka CS Act.94. That apart, the amending KCS Act (1 of 2000) having received the Assent of the Governor did not bring about any inconsistency or repugnancy with the provisions of the ID Act. In any event, in the absence of the Assent of the President to the amending KCS Act 1/2000, even if any inconsistency or repugnancy exists between the provisions of the KCS Act and the ID Act, it is the ID Act which will prevail over the KCS Act by virtue of Article 254 (1) of the Constitution but not vice-a-versa.95. The law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by the Parliament and the State Legislature on the same subject, which falls in List III - Concurrent list.96. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the Assent of the President will prevail over the Central Act in the concerned State by virtue of Article 254 (2) of the Constitution.97. A fortiori, in such a situation, if the State Act has received the Assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254 (1) of the Constitution.98. It is this principle, which was applied by this Court in the case of Dharappa while comparing the provisions of the Karnataka CS Act including its two amendments with that of the provisions of the ID Act.99. This takes us to examine another question. The majority Judges, as we find, proceeded to examine the questions by attempting to compare the language employed in the relevant Sections of the two repealed KCS Acts of 1932 and 1951 with that of the language of Section 69 of the KCS Act 1969 and noticing some departure in the language employed in Section 69, came to a conclusion that the language of Section 69 is comprehensive enough to exclude the jurisdiction of the Labour Court under the ID Act. The majority Judges also took note of some more Sections of the KCS Act and noticing some dis-similarity in the scheme of the KCS Act and Karnataka CS Act held that Section 69 of the KCS Act overrides the provisions of the ID Act since inception. We find ourselves unable to agree with the approach of the majority.100. In our view, when this Court in Dharappa’s case has interpreted the language of Section 70 of the Karnataka CS Act, the questions involved herein should have been examined by comparing the language employed in Section 69 of the KCS Act with the language employed in Section 70 of the Karnataka CS Act rather than to compare with the repealed provisions.101. In other words, once on comparing the language of Section 69 and that of Section 70 as amended by the first amendment, a conclusion is reached that both Sections are akin to each other till 20.06.2000, a fortiori, the law laid down in Dharappa’s case insofar as it interprets Section 70 as it originally stood and amended by Amendment Act 19/1976 would apply to Section 69 of the KCS Act. On the other hand, the ratio will not apply after 20.06.2000 because from that date, there was a change in the language of Section 70 which provided a clause to exclude the Jurisdiction of other Courts in express terms by Amendment Act of 2/2000.102. In the light of foregoing discussion, we are of the considered opinion that the view of majority Judges cannot be upheld whereas the view of the minority Judges deserves to be upheld and is accordingly upheld.103. We accordingly hold that the KCS Act and the ID Act both possess and enjoy the concurrent jurisdiction to decide any service dispute arising between the Co-operative Society’s Employee and his/her Employer (Co-operative Society).104. We also hold that it is the choice of the Employee concerned to choose any one forum out of the two forums available to him/her under the two Acts (the KCS Act and the I.D. Act) to get his/her service dispute decided. It is, however, subject to satisfying the test laid down under the ID Act that the employee concerned is a “workman”, the dispute raised by him/her is an “industrial dispute” and the Co-operative Society (Employer) is an “Industry” as defined under the ID Act.
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President, the provisions of the KCS Act too would have prevailed over the ID Act in the State by virtue of Article 254 (2) of the Constitution.93. Such is not the case here because though the KCS Act received the Assent of the President at the time of its enactment so also the Karnataka CS Act received, this Court while interpreting Section 70 as amended by Act No.19/1976 of the Karnataka CS Act with the Assent of the Governor, has held incase that Section 70 did not create any inconsistency or/and repugnancy with any provisions of the ID Act and possessed concurrent jurisdiction over such service dispute. This ratio ofThe law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by the Parliament and the State Legislature on the same subject, which falls in List IIIConcurrent list.96. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the Assent of the President will prevail over the Central Act in the concerned State by virtue of Article 254 (2) of the Constitution.97. A fortiori, in such a situation, if the State Act has received the Assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254 (1) of the Constitution.98. It is this principle, which was applied by this Court in the case of Dharappa while comparing the provisions of the Karnataka CS Act including its two amendments with that of the provisions of the ID Act.99. This takes us to examine another question. The majority Judges, as we find, proceeded to examine the questions by attempting to compare the language employed in the relevant Sections of the two repealed KCS Acts of 1932 and 1951 with that of the language of Section 69 of the KCS Act 1969 and noticing some departure in the language employed in Section 69, came to a conclusion that the language of Section 69 is comprehensive enough to exclude the jurisdiction of the Labour Court under the ID Act. The majority Judges also took note of some more Sections of the KCS Act and noticing somein the scheme of the KCS Act and Karnataka CS Act held that Section 69 of the KCS Act overrides the provisions of the ID Act since inception. We find ourselves unable to agree with the approach of the majority.100. In our view, when this Court incase has interpreted the language of Section 70 of the Karnataka CS Act, the questions involved herein should have been examined by comparing the language employed in Section 69 of the KCS Act with the language employed in Section 70 of the Karnataka CS Act rather than to compare with the repealed provisions.101. In other words, once on comparing the language of Section 69 and that of Section 70 as amended by the first amendment, a conclusion is reached that both Sections are akin to each other till 20.06.2000, a fortiori, the law laid down incase insofar as it interprets Section 70 as it originally stood and amended by Amendment Act 19/1976 would apply to Section 69 of the KCS Act. On the other hand, the ratio will not apply after 20.06.2000 because from that date, there was a change in the language of Section 70 which provided a clause to exclude the Jurisdiction of other Courts in express terms by Amendment Act of 2/2000.102. In the light of foregoing discussion, we are of the considered opinion that the view of majority Judges cannot be upheld whereas the view of the minority Judges deserves to be upheld and is accordingly upheld.103. We accordingly hold that the KCS Act and the ID Act both possess and enjoy the concurrent jurisdiction to decide any service dispute arising between thes Employee and his/here Society).104. We also hold that it is the choice of the Employee concerned to choose any one forum out of the two forums available to him/her under the two Acts (the KCS Act and the I.D. Act) to get his/her service dispute decided. It is, however, subject to satisfying the test laid down under the ID Act that the employee concerned is athe dispute raised by him/her is annd the Cooperative Society(Employer) is anas defined under the ID Act.In our considered opinion, the ratio ofcase is that firstly, Section 70 of the Karnataka CS Act as it originally stood and amended by first Amendment Act 19 of 1976 adding therein two clauses (d) and (e) to Section 70, whether one reads it independently or/and in juxtaposition with other Sections would find that it did not provide for express ouster or exclusion of the jurisdiction of the Labour Court/Industrial Tribunal under the ID Act.Similarly, we find that the identical wording occurring in the beginning and the end of Section 69 and Section 70 was interpreted ine wherein it was held that such provisions cannot be construed as providing an express exclusion of the jurisdiction of other Courts including that of the Labour Court and the Industrial Tribunal under the ID Act. On the other hand, it was held that the Karnataka CS Act possesses concurrent jurisdiction for deciding the services disputes upto 20.06.2000. (see para 14/16 of Dharappa)91. This interpretation of, in our view, would squarely apply to the provisions of the KCS Act if Section 69 is also suitably amended by the State of Kerala by making Section 69 at par with amended Section 70 of Karnataka CS Act. As on date, it is not so.
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The War Profits Tax Commissioner Vs. M/S. Binodiram Balchand | Ordinance reads:"This Ordinance might be called the Gwalior War Profits Tax (Amendment) Ordinance Samvat 2004. 11. We do not consider it necessary to dilate on the point as we are clearly of the opinion that the Schedule was part of the Ordinance and has therefore to be read not as subordinate legislation under S. 50 but as part and parcel of the Ordinance itself. 12. The whole basis therefore of the reasoning upon which the learned Judges of the High Court proceeded falls to the ground and the only question is whether accepting the respondents case that the shares held by it in the Binod Mills Ltd. were really part of its investments, these investments have "any connection with its business. It is common ground that the respondent was the Secretary, Treasurer and Managing agent of the Binod Mills and what we are now concerned with are the shares held by it in that company. In the case of every assessee who carries on a business activity and is in receipt of profits from that business, on the terms of R. 3 (1) income from every investment held by him is liable to be included in the profits assessable to tax unless such person was able to satisfy the revenue authorities that the investments had "no connection whatever with his business. Mr. Viswanatha Sastri, learned Counsel for the respondent sought to overcome this position by submitting that the "connection contemplated by the rule was a direct "connection and not a remote or fanciful one and that in the present case there was really no connection between the respondents ownership of these shares and the office of managing-agent which it held, His contention was that except the fact that the recipient of the profits from the "business of managing agency and of the dividend income was the same, there was no other connection between the one and the other. In further elaboration of his point, he invited us to hold that the "connection would be direct only where the investment was related to a business activity as cause and effect or as a sine qua non. Thus if it was a requirement either of the Articles of Association of the company or of the Managing Agency Agreement, that the managing agent should be a share-holder, or the holder of a specified number of shares, then alone, learned Counsel contended, the managing agency being dependent on the share-holding, there would be that connection which would bring the dividend income within the expanded definition of profits from business under R. 3 (1). In all the other cases where shares were held, without the assessee being obliged to hold them for the purpose of his business activity, no distinction, Counsel submitted, could be drawn between the investment in the shares of a company with which he had nothing to do, and a company which he managed under an agreement. Learned Counsel further stressed that the case of the respondent was stronger because the Managing Agency Agreement with the respondent was to last so long as the respondent-firm existed and carried on business in that name and could not be terminated by the company "save and except when the agent being found guilty of fraud in the management or in the discharge of their duties, and having regard to this security of tenure which the respondent enjoyed, the holding of these shares had no connection whatever with the business of managing agency. We find ourselves unable to accept this interpretation of R. 3 (1).The relevant words in the rule being "any connection whatever, it would not be giving proper effect to the meaning of the words "any and "whatever to restrict it to cases of "direct connection in the sense suggested on behalf of the respondent. But this apart, by the number of shares which the respondent owned in the mills it is admitted that it obtained a controlling interest - it held the majority of the shares in the company. The respondent was therefore enabled by reason of this investment to control the action of the company which was the other party under the Managing Agency Agreement. This control was capable of being used to further the interests of the Managing-agent in its relations with the company and whether or not this was used for obtaining advantages, it would certainly be available for avoiding any disadvantages arising from misunderstandings with the company. It could not be denied that the control would certainly be useful to keep the relations between the company and the Managing-agent smooth so as to enable the Managing-agent to earn his commission etc. without differences or disputes. Even if therefore the word "connection in R. 3 (1) meant a "direct connection - a construction which we do not adopt - it appears to us that the present case satisfied even that test. In any event the "connection is not anything remote, fanciful or imaginary, but on the other hand real and capable of being turned to good account. It certainly cannot be equated with the holding of shares by the respondent in a company with which he had no connection other than as a share-holder. 13. We are therefore of the opinion that the dividend received by the respondent from the Binod Mills Ltd., was properly included by the assessing authorities in the computation of the taxable profit of the respondent under the Ordinance and that the High Court erred in answering the reference in favour of the assessee. We have already pointed out that the High Court did not deal with or express any opinion on the two subsidiary contentions urged by the respondent with reference to the first question. Those points were also naturally not argued before us and we do not express any opinion on them. It is obvious that the reference cannot be disposed of without deciding these contentions and the case would have to be remanded to the High Court for dealing with these subsidiary points. | 1[ds]The learned Judges of the High Court dealt only with the first of the above contentions, and having accepted it, considered it unnecessary to express any opinion on the other two12. The whole basis therefore of the reasoning upon which the learned Judges of the High Court proceeded falls to the ground and the only question is whether accepting the respondents case that the shares held by it in the Binod Mills Ltd. were really part of its investments, these investments have "any connection with its business. It is common ground that the respondent was the Secretary, Treasurer and Managing agent of the Binod Mills and what we are now concerned with are the shares held by it in that company. In the case of every assessee who carries on a business activity and is in receipt of profits from that business, on the terms of R. 3 (1) income from every investment held by him is liable to be included in the profits assessable to tax unless such person was able to satisfy the revenue authorities that the investments had "no connection whatever with his businessWe find ourselves unable to accept this interpretation of R. 3 (1).The relevant words in the rule being "any connection whatever, it would not be giving proper effect to the meaning of the words "any and "whatever to restrict it to cases of "direct connection in the sense suggested on behalf of the respondent. But this apart, by the number of shares which the respondent owned in the mills it is admitted that it obtained a controlling interest - it held the majority of the shares in the company. The respondent was therefore enabled by reason of this investment to control the action of the company which was the other party under the Managing Agency Agreement. This control was capable of being used to further the interests of the Managing-agent in its relations with the company and whether or not this was used for obtaining advantages, it would certainly be available for avoiding any disadvantages arising from misunderstandings with the company. It could not be denied that the control would certainly be useful to keep the relations between the company and the Managing-agent smooth so as to enable the Managing-agent to earn his commission etc. without differences or disputes. Even if therefore the word "connection in R. 3 (1) meant a "direct connection - a construction which we do not adopt - it appears to us that the present case satisfied even that test. In any event the "connection is not anything remote, fanciful or imaginary, but on the other hand real and capable of being turned to good account. It certainly cannot be equated with the holding of shares by the respondent in a company with which he had no connection other than as a share-holder13. We are therefore of the opinion that the dividend received by the respondent from the Binod Mills Ltd., was properly included by the assessing authorities in the computation of the taxable profit of the respondent under the Ordinance and that the High Court erred in answering the reference in favour of the assessee. We have already pointed out that the High Court did not deal with or express any opinion on the two subsidiary contentions urged by the respondent with reference to the first question. Those points were also naturally not argued before us and we do not express any opinion on them. It is obvious that the reference cannot be disposed of without deciding these contentions and the case would have to be remanded to the High Court for dealing with these subsidiary points. | 1 | 3,908 | 657 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
Ordinance reads:"This Ordinance might be called the Gwalior War Profits Tax (Amendment) Ordinance Samvat 2004. 11. We do not consider it necessary to dilate on the point as we are clearly of the opinion that the Schedule was part of the Ordinance and has therefore to be read not as subordinate legislation under S. 50 but as part and parcel of the Ordinance itself. 12. The whole basis therefore of the reasoning upon which the learned Judges of the High Court proceeded falls to the ground and the only question is whether accepting the respondents case that the shares held by it in the Binod Mills Ltd. were really part of its investments, these investments have "any connection with its business. It is common ground that the respondent was the Secretary, Treasurer and Managing agent of the Binod Mills and what we are now concerned with are the shares held by it in that company. In the case of every assessee who carries on a business activity and is in receipt of profits from that business, on the terms of R. 3 (1) income from every investment held by him is liable to be included in the profits assessable to tax unless such person was able to satisfy the revenue authorities that the investments had "no connection whatever with his business. Mr. Viswanatha Sastri, learned Counsel for the respondent sought to overcome this position by submitting that the "connection contemplated by the rule was a direct "connection and not a remote or fanciful one and that in the present case there was really no connection between the respondents ownership of these shares and the office of managing-agent which it held, His contention was that except the fact that the recipient of the profits from the "business of managing agency and of the dividend income was the same, there was no other connection between the one and the other. In further elaboration of his point, he invited us to hold that the "connection would be direct only where the investment was related to a business activity as cause and effect or as a sine qua non. Thus if it was a requirement either of the Articles of Association of the company or of the Managing Agency Agreement, that the managing agent should be a share-holder, or the holder of a specified number of shares, then alone, learned Counsel contended, the managing agency being dependent on the share-holding, there would be that connection which would bring the dividend income within the expanded definition of profits from business under R. 3 (1). In all the other cases where shares were held, without the assessee being obliged to hold them for the purpose of his business activity, no distinction, Counsel submitted, could be drawn between the investment in the shares of a company with which he had nothing to do, and a company which he managed under an agreement. Learned Counsel further stressed that the case of the respondent was stronger because the Managing Agency Agreement with the respondent was to last so long as the respondent-firm existed and carried on business in that name and could not be terminated by the company "save and except when the agent being found guilty of fraud in the management or in the discharge of their duties, and having regard to this security of tenure which the respondent enjoyed, the holding of these shares had no connection whatever with the business of managing agency. We find ourselves unable to accept this interpretation of R. 3 (1).The relevant words in the rule being "any connection whatever, it would not be giving proper effect to the meaning of the words "any and "whatever to restrict it to cases of "direct connection in the sense suggested on behalf of the respondent. But this apart, by the number of shares which the respondent owned in the mills it is admitted that it obtained a controlling interest - it held the majority of the shares in the company. The respondent was therefore enabled by reason of this investment to control the action of the company which was the other party under the Managing Agency Agreement. This control was capable of being used to further the interests of the Managing-agent in its relations with the company and whether or not this was used for obtaining advantages, it would certainly be available for avoiding any disadvantages arising from misunderstandings with the company. It could not be denied that the control would certainly be useful to keep the relations between the company and the Managing-agent smooth so as to enable the Managing-agent to earn his commission etc. without differences or disputes. Even if therefore the word "connection in R. 3 (1) meant a "direct connection - a construction which we do not adopt - it appears to us that the present case satisfied even that test. In any event the "connection is not anything remote, fanciful or imaginary, but on the other hand real and capable of being turned to good account. It certainly cannot be equated with the holding of shares by the respondent in a company with which he had no connection other than as a share-holder. 13. We are therefore of the opinion that the dividend received by the respondent from the Binod Mills Ltd., was properly included by the assessing authorities in the computation of the taxable profit of the respondent under the Ordinance and that the High Court erred in answering the reference in favour of the assessee. We have already pointed out that the High Court did not deal with or express any opinion on the two subsidiary contentions urged by the respondent with reference to the first question. Those points were also naturally not argued before us and we do not express any opinion on them. It is obvious that the reference cannot be disposed of without deciding these contentions and the case would have to be remanded to the High Court for dealing with these subsidiary points.
### Response:
1
### Explanation:
The learned Judges of the High Court dealt only with the first of the above contentions, and having accepted it, considered it unnecessary to express any opinion on the other two12. The whole basis therefore of the reasoning upon which the learned Judges of the High Court proceeded falls to the ground and the only question is whether accepting the respondents case that the shares held by it in the Binod Mills Ltd. were really part of its investments, these investments have "any connection with its business. It is common ground that the respondent was the Secretary, Treasurer and Managing agent of the Binod Mills and what we are now concerned with are the shares held by it in that company. In the case of every assessee who carries on a business activity and is in receipt of profits from that business, on the terms of R. 3 (1) income from every investment held by him is liable to be included in the profits assessable to tax unless such person was able to satisfy the revenue authorities that the investments had "no connection whatever with his businessWe find ourselves unable to accept this interpretation of R. 3 (1).The relevant words in the rule being "any connection whatever, it would not be giving proper effect to the meaning of the words "any and "whatever to restrict it to cases of "direct connection in the sense suggested on behalf of the respondent. But this apart, by the number of shares which the respondent owned in the mills it is admitted that it obtained a controlling interest - it held the majority of the shares in the company. The respondent was therefore enabled by reason of this investment to control the action of the company which was the other party under the Managing Agency Agreement. This control was capable of being used to further the interests of the Managing-agent in its relations with the company and whether or not this was used for obtaining advantages, it would certainly be available for avoiding any disadvantages arising from misunderstandings with the company. It could not be denied that the control would certainly be useful to keep the relations between the company and the Managing-agent smooth so as to enable the Managing-agent to earn his commission etc. without differences or disputes. Even if therefore the word "connection in R. 3 (1) meant a "direct connection - a construction which we do not adopt - it appears to us that the present case satisfied even that test. In any event the "connection is not anything remote, fanciful or imaginary, but on the other hand real and capable of being turned to good account. It certainly cannot be equated with the holding of shares by the respondent in a company with which he had no connection other than as a share-holder13. We are therefore of the opinion that the dividend received by the respondent from the Binod Mills Ltd., was properly included by the assessing authorities in the computation of the taxable profit of the respondent under the Ordinance and that the High Court erred in answering the reference in favour of the assessee. We have already pointed out that the High Court did not deal with or express any opinion on the two subsidiary contentions urged by the respondent with reference to the first question. Those points were also naturally not argued before us and we do not express any opinion on them. It is obvious that the reference cannot be disposed of without deciding these contentions and the case would have to be remanded to the High Court for dealing with these subsidiary points.
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Shiv Charan Singh Vs. Maharaj Kumar Sri Brijendra Pal | the trial on application filed by the appellants the High Court directed that the account books maintained by the respondent as well as the account books, cash book and the credit and cash vouchers of Karauli Auto Stores might be shown to the appellants counsel. In spite of that order the appellant or his counsel could not examine those account books and documents. Nothing was consequently brought on record to question the correctness of the entries in the account books. It has also been urged that the appellant engaged certain vehicles is for a number of days but the expenses incurred on that account were not correctly shown. As against that, the case of the respondent is that only those vehicles were hired by him which were shown in the documents filed by him. According further to him, the number of days for which those vehicles were hired was also correctly shown. The appellant produced oral evidence of a couple of witnesses in support of the stand taken by him. The High Court declined to accept that evidence. After hearing the learned counsel for the appellant, we are not inclined to take a contrary view. The evidence adduced by the appellant was not only not supported by any documents it ran counter to the documents which were produced by the respondent and some of which had been signed by the witnesses produced by the appellant It is well established that in an election appeal this Court should not interfere with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity. No such infirmity has been brought to our notice.5. Mr. Singh has then submitted that the daily hiring charges of a truck was about Rs. 100 but the respondent in his return showed the daily hiring charge for the truck to be Rs. 35. The case of the respondent in that respect is that the was charged Rs. 35 as daily hiring charges because he prevented the requisitioning of those trucks by making a representation that they were needed for his election campaign. Evidence was also produced in support of the above stand of the respondent. The High Court found the above explanation of the respondent to be plausible. Nothing cogent has been brought to our notice as to why we should take a contrary view. The fact that there are suspicious features in the respondents case about his election expenses would not justify interference with the finding of the High Court because suspicion cannot take the place of proof.Coming to the question of the impugned issues of Kronch and pamphlet Ex. 2, we find that there is no cogent evidence on the record to show that Radhey Shyam Sharma published those issues and the pamphlet at the instance of or with the consent of the respondent or his election agent. It is indeed evident from the issue of Kronch dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant and had been criticising him since 1970, about 14 months before the election. There is, therefore, nothing to rule out the possibility, as stated by the respondent, that Radhey Shyam Sharma published the impugned issues and pamphlet at his own and without the consent of the respondent or his election agent.6. The allegation that the impugned issues of Kronch and the pamphlet were distributed in the election meetings of the respondent remains unsubstantiated. The appellant got produced reports Ex.15 and 16 of the two election meetings of the respondent held on February 27, 1972 and March 2, 1972. According to these reports, Radhey Shyam journalist addressed those meetings and asked those present to vote for the respondent. There is no mention in these reports of Radhey Shyam having said anything against the appellant. There is also no reference to the distribution of any pamphlets or issues of Kronch in those meetings. Our attention has been invited by the learned counsel for the appellant to the statement of Nurul Hasan constable (PW 4), according to whom some documents were distributed in a meeting held on March 2, 1972. The witness added that he did not know as to what were the contents of those documents because he saw the whole thing from a distance. The evidence of Nurul Hasan, in our opinion, is too slender a basis for re cording a finding that the impugned pamphlet and issues of Kronch were distributed in the meeting of the respondent. It is in the evidence of Sub-Inspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily available to the constable present in that meeting, he sends it along with his report. The witness also produced some pamphlets which were distributed in an election meeting against the respondent. If as is the case of the appellant, the impugned issues of Kronch and pamphlet in question were widely distributed in the election meetings of the respondent, it is not clear as to why the policeman on duty in those meetings could not secure even one copy of those issues or pamphlets. The fact that no such copy was sent with any of the police reports shows that the allegation of the appellant in this respect is not well-founded.In view of our finding that it is not proved that Radhey Shyam got published the impugn ed issues of Kronch and pamphlet at the instance of or with the consent of the respondent or his Section agent and in view of our further finding that it is not proved that the copies of the impugned issues of Kronch or pamphlet were distributed in the election meetings of the respondent, we need not go into the question as to whether the finding of the High Court on issue No. 4 is correct or not. We consequently neither affirm nor disaffirm the finding of fact or law under this issue.7. | 0[ds]So far as this question is concerned, we find that the High Court has considered the evidence brought on record and has held on appraisement of that evidence that there was no cogent material to show that the respondent had incurred any expenditure over and above what had been shown in his return. After having been taken through the material on record, we find no cogent ground whatsoever to interfere with the appraisement of the evidence by the Highhearing the learned counsel for the appellant, we are not inclined to take a contrary view. The evidence adduced by the appellant was not only not supported by any documents it ran counter to the documents which were produced by the respondent and some of which had been signed by the witnesses produced by the appellant It is well established that in an election appeal this Court should not interfere with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity. No such infirmity has been brought to ourto the question of the impugned issues of Kronch and pamphlet Ex. 2, we find that there is no cogent evidence on the record to show that Radhey Shyam Sharma published those issues and the pamphlet at the instance of or with the consent of the respondent or his election agent. It is indeed evident from the issue of Kronch dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant and had been criticising him since 1970, about 14 months before the election. There is, therefore, nothing to rule out the possibility, as stated by the respondent, that Radhey Shyam Sharma published the impugned issues and pamphlet at his own and without the consent of the respondent or his electionallegation that the impugned issues of Kronch and the pamphlet were distributed in the election meetings of the respondent remains unsubstantiated. The appellant got produced reports Ex.15 and 16 of the two election meetings of the respondent held on February 27, 1972 and March 2, 1972. According to these reports, Radhey Shyam journalist addressed those meetings and asked those present to vote for the respondent. There is no mention in these reports of Radhey Shyam having said anything against the appellant. There is also no reference to the distribution of any pamphlets or issues of Kronch in thoseevidence of Nurul Hasan, in our opinion, is too slender a basis for re cording a finding that the impugned pamphlet and issues of Kronch were distributed in the meeting of the respondent. It is in the evidence of Sub-Inspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily available to the constable present in that meeting, he sends it along with his report. The witness also produced some pamphlets which were distributed in an election meeting against the respondent. If as is the case of the appellant, the impugned issues of Kronch and pamphlet in question were widely distributed in the election meetings of the respondent, it is not clear as to why the policeman on duty in those meetings could not secure even one copy of those issues or pamphlets. The fact that no such copy was sent with any of the police reports shows that the allegation of the appellant in this respect is not well-founded.In view of our finding that it is not proved that Radhey Shyam got published the impugn ed issues of Kronch and pamphlet at the instance of or with the consent of the respondent or his Section agent and in view of our further finding that it is not proved that the copies of the impugned issues of Kronch or pamphlet were distributed in the election meetings of the respondent, we need not go into the question as to whether the finding of the High Court on issue No. 4 is correct or not. We consequently neither affirm nor disaffirm the finding of fact or law under this issue. | 0 | 2,533 | 720 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the trial on application filed by the appellants the High Court directed that the account books maintained by the respondent as well as the account books, cash book and the credit and cash vouchers of Karauli Auto Stores might be shown to the appellants counsel. In spite of that order the appellant or his counsel could not examine those account books and documents. Nothing was consequently brought on record to question the correctness of the entries in the account books. It has also been urged that the appellant engaged certain vehicles is for a number of days but the expenses incurred on that account were not correctly shown. As against that, the case of the respondent is that only those vehicles were hired by him which were shown in the documents filed by him. According further to him, the number of days for which those vehicles were hired was also correctly shown. The appellant produced oral evidence of a couple of witnesses in support of the stand taken by him. The High Court declined to accept that evidence. After hearing the learned counsel for the appellant, we are not inclined to take a contrary view. The evidence adduced by the appellant was not only not supported by any documents it ran counter to the documents which were produced by the respondent and some of which had been signed by the witnesses produced by the appellant It is well established that in an election appeal this Court should not interfere with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity. No such infirmity has been brought to our notice.5. Mr. Singh has then submitted that the daily hiring charges of a truck was about Rs. 100 but the respondent in his return showed the daily hiring charge for the truck to be Rs. 35. The case of the respondent in that respect is that the was charged Rs. 35 as daily hiring charges because he prevented the requisitioning of those trucks by making a representation that they were needed for his election campaign. Evidence was also produced in support of the above stand of the respondent. The High Court found the above explanation of the respondent to be plausible. Nothing cogent has been brought to our notice as to why we should take a contrary view. The fact that there are suspicious features in the respondents case about his election expenses would not justify interference with the finding of the High Court because suspicion cannot take the place of proof.Coming to the question of the impugned issues of Kronch and pamphlet Ex. 2, we find that there is no cogent evidence on the record to show that Radhey Shyam Sharma published those issues and the pamphlet at the instance of or with the consent of the respondent or his election agent. It is indeed evident from the issue of Kronch dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant and had been criticising him since 1970, about 14 months before the election. There is, therefore, nothing to rule out the possibility, as stated by the respondent, that Radhey Shyam Sharma published the impugned issues and pamphlet at his own and without the consent of the respondent or his election agent.6. The allegation that the impugned issues of Kronch and the pamphlet were distributed in the election meetings of the respondent remains unsubstantiated. The appellant got produced reports Ex.15 and 16 of the two election meetings of the respondent held on February 27, 1972 and March 2, 1972. According to these reports, Radhey Shyam journalist addressed those meetings and asked those present to vote for the respondent. There is no mention in these reports of Radhey Shyam having said anything against the appellant. There is also no reference to the distribution of any pamphlets or issues of Kronch in those meetings. Our attention has been invited by the learned counsel for the appellant to the statement of Nurul Hasan constable (PW 4), according to whom some documents were distributed in a meeting held on March 2, 1972. The witness added that he did not know as to what were the contents of those documents because he saw the whole thing from a distance. The evidence of Nurul Hasan, in our opinion, is too slender a basis for re cording a finding that the impugned pamphlet and issues of Kronch were distributed in the meeting of the respondent. It is in the evidence of Sub-Inspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily available to the constable present in that meeting, he sends it along with his report. The witness also produced some pamphlets which were distributed in an election meeting against the respondent. If as is the case of the appellant, the impugned issues of Kronch and pamphlet in question were widely distributed in the election meetings of the respondent, it is not clear as to why the policeman on duty in those meetings could not secure even one copy of those issues or pamphlets. The fact that no such copy was sent with any of the police reports shows that the allegation of the appellant in this respect is not well-founded.In view of our finding that it is not proved that Radhey Shyam got published the impugn ed issues of Kronch and pamphlet at the instance of or with the consent of the respondent or his Section agent and in view of our further finding that it is not proved that the copies of the impugned issues of Kronch or pamphlet were distributed in the election meetings of the respondent, we need not go into the question as to whether the finding of the High Court on issue No. 4 is correct or not. We consequently neither affirm nor disaffirm the finding of fact or law under this issue.7.
### Response:
0
### Explanation:
So far as this question is concerned, we find that the High Court has considered the evidence brought on record and has held on appraisement of that evidence that there was no cogent material to show that the respondent had incurred any expenditure over and above what had been shown in his return. After having been taken through the material on record, we find no cogent ground whatsoever to interfere with the appraisement of the evidence by the Highhearing the learned counsel for the appellant, we are not inclined to take a contrary view. The evidence adduced by the appellant was not only not supported by any documents it ran counter to the documents which were produced by the respondent and some of which had been signed by the witnesses produced by the appellant It is well established that in an election appeal this Court should not interfere with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity. No such infirmity has been brought to ourto the question of the impugned issues of Kronch and pamphlet Ex. 2, we find that there is no cogent evidence on the record to show that Radhey Shyam Sharma published those issues and the pamphlet at the instance of or with the consent of the respondent or his election agent. It is indeed evident from the issue of Kronch dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant and had been criticising him since 1970, about 14 months before the election. There is, therefore, nothing to rule out the possibility, as stated by the respondent, that Radhey Shyam Sharma published the impugned issues and pamphlet at his own and without the consent of the respondent or his electionallegation that the impugned issues of Kronch and the pamphlet were distributed in the election meetings of the respondent remains unsubstantiated. The appellant got produced reports Ex.15 and 16 of the two election meetings of the respondent held on February 27, 1972 and March 2, 1972. According to these reports, Radhey Shyam journalist addressed those meetings and asked those present to vote for the respondent. There is no mention in these reports of Radhey Shyam having said anything against the appellant. There is also no reference to the distribution of any pamphlets or issues of Kronch in thoseevidence of Nurul Hasan, in our opinion, is too slender a basis for re cording a finding that the impugned pamphlet and issues of Kronch were distributed in the meeting of the respondent. It is in the evidence of Sub-Inspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily available to the constable present in that meeting, he sends it along with his report. The witness also produced some pamphlets which were distributed in an election meeting against the respondent. If as is the case of the appellant, the impugned issues of Kronch and pamphlet in question were widely distributed in the election meetings of the respondent, it is not clear as to why the policeman on duty in those meetings could not secure even one copy of those issues or pamphlets. The fact that no such copy was sent with any of the police reports shows that the allegation of the appellant in this respect is not well-founded.In view of our finding that it is not proved that Radhey Shyam got published the impugn ed issues of Kronch and pamphlet at the instance of or with the consent of the respondent or his Section agent and in view of our further finding that it is not proved that the copies of the impugned issues of Kronch or pamphlet were distributed in the election meetings of the respondent, we need not go into the question as to whether the finding of the High Court on issue No. 4 is correct or not. We consequently neither affirm nor disaffirm the finding of fact or law under this issue.
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C.I.T.,Ahmedabad Vs. Reliance Petroproducts Pvt.Ltd | element of mens rea was essential. It was only on the point of mens rea that the judgment in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. was upset. In Union of India v. Dharamendra Textile Processors (cited supra), after quoting from Section 271 extensively and also considering Section 271(1)(c), the Court came to the conclusion that since Section 271(1)(c) indicated the element of strict liability on the assessee for the concealment or for giving inaccurate particulars while filing Return, there was no necessity of mens rea. The Court went on to hold that the objective behind enactment of Section 271(1)(c) read with Explanations indicated with the said section was for providing remedy for loss of revenue and such a penalty was a civil liability and, therefore, wilful concealment is not an essential ingredient for attracting civil liability as was the case in the matter of prosecution under Section 276-C of the Act. The basic reason why decision in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra) was overruled by this Court in Union of India v. Dharamendra Textile Processors (cited supra), was that according to this Court the effect and difference between Section 271(1)(c) and Section 276-C of the Act was lost sight of in case of Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra). However, it must be pointed out that in Union of India v. Dharamendra Textile Processors (cited supra), no fault was found with the reasoning in the decision in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra), where the Court explained the meaning of the terms “conceal” and inaccurate”. It was only the ultimate inference in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra) to the effect that mens rea was an essential ingredient for the penalty under Section 271(1)(c) that the decision in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra) was overruled. 9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster’s Dictionary, the word “inaccurate” has been defined as: “not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy or transcript”. We have already seen the meaning of the word “particulars” in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under Section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars.10. It was tried to be suggested that Section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form the part of the total income. It was, therefore, reiterated before us that the Assessing Officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowing that they are incorrect; it amounted to concealment of income. It was tried to be argued that the falsehood in accounts can take either of the two forms; (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one’s income as well as furnishing of inaccurate particulars of income. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the Legislature. 11. In this behalf the observations of this Court made in Sree Krishna Electricals v. State of Tamil Nadu & Anr., (2009) 23 VST 249 (SC), as regards the penalty are apposite. In the aforementioned decision which pertained to the penalty proceedings in Tamil Nadu General Sales Tax Act, the Court had found that the authorities below had found that there were some incorrect statements made in the Return. However, the said transactions were reflected in the accounts of the assessee. This Court, therefore, observed: “So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appellant’s account books. Where certain items which are not included in the turnover are disclosed in the dealer’s own account books and the assessing authorities include these items in the dealer’s turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside.” | 1[ds]9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. InDictionary, the wordhas been definedaccurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy orhave already seen the meaning of the wordin the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under Section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars.10. It was tried to be suggested that Section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form the part of the total income. It was, therefore, reiterated before us that the Assessing Officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowing that they are incorrect; it amounted to concealment of income. It was tried to be argued that the falsehood in accounts can take either of the two forms; (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars ofincome as well as furnishing of inaccurate particulars of income. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the Legislature. | 1 | 3,185 | 572 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
element of mens rea was essential. It was only on the point of mens rea that the judgment in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. was upset. In Union of India v. Dharamendra Textile Processors (cited supra), after quoting from Section 271 extensively and also considering Section 271(1)(c), the Court came to the conclusion that since Section 271(1)(c) indicated the element of strict liability on the assessee for the concealment or for giving inaccurate particulars while filing Return, there was no necessity of mens rea. The Court went on to hold that the objective behind enactment of Section 271(1)(c) read with Explanations indicated with the said section was for providing remedy for loss of revenue and such a penalty was a civil liability and, therefore, wilful concealment is not an essential ingredient for attracting civil liability as was the case in the matter of prosecution under Section 276-C of the Act. The basic reason why decision in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra) was overruled by this Court in Union of India v. Dharamendra Textile Processors (cited supra), was that according to this Court the effect and difference between Section 271(1)(c) and Section 276-C of the Act was lost sight of in case of Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra). However, it must be pointed out that in Union of India v. Dharamendra Textile Processors (cited supra), no fault was found with the reasoning in the decision in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra), where the Court explained the meaning of the terms “conceal” and inaccurate”. It was only the ultimate inference in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra) to the effect that mens rea was an essential ingredient for the penalty under Section 271(1)(c) that the decision in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr. (cited supra) was overruled. 9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster’s Dictionary, the word “inaccurate” has been defined as: “not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy or transcript”. We have already seen the meaning of the word “particulars” in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under Section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars.10. It was tried to be suggested that Section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form the part of the total income. It was, therefore, reiterated before us that the Assessing Officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowing that they are incorrect; it amounted to concealment of income. It was tried to be argued that the falsehood in accounts can take either of the two forms; (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one’s income as well as furnishing of inaccurate particulars of income. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the Legislature. 11. In this behalf the observations of this Court made in Sree Krishna Electricals v. State of Tamil Nadu & Anr., (2009) 23 VST 249 (SC), as regards the penalty are apposite. In the aforementioned decision which pertained to the penalty proceedings in Tamil Nadu General Sales Tax Act, the Court had found that the authorities below had found that there were some incorrect statements made in the Return. However, the said transactions were reflected in the accounts of the assessee. This Court, therefore, observed: “So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appellant’s account books. Where certain items which are not included in the turnover are disclosed in the dealer’s own account books and the assessing authorities include these items in the dealer’s turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside.”
### Response:
1
### Explanation:
9. We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. InDictionary, the wordhas been definedaccurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy orhave already seen the meaning of the wordin the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under Section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the Return cannot amount to the inaccurate particulars.10. It was tried to be suggested that Section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form the part of the total income. It was, therefore, reiterated before us that the Assessing Officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowing that they are incorrect; it amounted to concealment of income. It was tried to be argued that the falsehood in accounts can take either of the two forms; (i) an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars ofincome as well as furnishing of inaccurate particulars of income. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its Return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the Return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under Section 271(1)(c). If we accept the contention of the Revenue then in case of every Return where the claim made is not accepted by Assessing Officer for any reason, the assessee will invite penalty under Section 271(1)(c). That is clearly not the intendment of the Legislature.
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STATE OF ODISHA & ORS. ETC.ETC Vs. SULEKH CHANDRA PRADHAN ETC. ETC | the said Rules are not applicable. The said Rules would clearly show that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard deserves to be rejected. 34. We further find that the Tribunal, while delivering the judgment and order dated 18th May, 2017 and 30th January, 2018, has failed to take into consideration the earlier orders dated 25th June, 2013 and 23rd September, 2013 delivered by the same Tribunal. In the said orders of 2013, the Tribunal had elaborately considered the provisions of the said Rules and found no merit in the contentions raised on behalf of the applicants therein. The orders passed by the Tribunal ignoring its earlier orders, which were passed elaborately considering the scheme of the said Rules, are totally contrary to the well- established norms of judicial propriety. The situation becomes graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2) of 1996 with regard to the same relief was rejected by the Tribunal vide its earlier order dated 12th April, 2012. The orders passed by the Tribunal are, therefore, totally unsustainable in view of the law laid down by this Court in the case of Official Liquidator vs. Dayanand and others (supra). Not only this, the Tribunal as well as the High Court has failed to take into consideration the order passed by this Court on 2nd December, 1996 in Civil Appeal No. 15712 of 1996 (1997) 2 SCC 635 . 35. The impugned order passed by the High Court depicts total non--application of mind. Whereas the cause title would itself show that a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned judgment, the High Court observed that the order dated 18th May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged by the State. Whereas the teachers have hardly worked for four years and a substantial part thereof on account of interim orders passed by the High Court, the High Court goes on to observe that the teachers have worked for a period of more than 20 years. No reasons, leave aside sound reasons, are reflected in the impugned order while dismissing the writ petitions filed by the State. 36. That leaves us with the submission of Shri R. Balasubramanian, learned Senior Counsel that since the view taken by the Tribunal has been affirmed by the High Court and the Special Leave Petition challenging the same has been dismissed, the view of the Tribunal has become final. In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359, wherein this Court has held as under: 27. A petition for leave to appeal to this Court may be dismissed by a non--speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non--speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. [emphasis supplied] 37. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court. As such, the contention in that regard is rejected. 38. We are, therefore, of the considered view that the Tribunal has erred in allowing the Original Applications of the applicants/teachers. Similarly, the High Court has also erred in dismissing the petitions filed by the appellants. | 1[ds]27. Perusal of the Sub--rule (1) of Rule 5 of the said Rules would show that the Secretary of the Managing Committee or the Governing Body, as the case may be, of an Aided Educational Institution, is required to apply to the Selection Board on or before the thirty--first day of August every year with copy of each application to the concerned Inspector of Schools and Director of Higher Education. The Inspector of Schools and the Director of Higher Education are required to process the applications so received and transmit the same to the Selection Board by thirtieth day of September every year with certificate of genuineness of the vacancy/vacancies. Perusal of Sub--rule (2) of Rule 5 of the said Rules would show that the Selection Board shall recommend a list of candidates in order of merit strictly according to the number of vacancies to the concerned Directors, who shall thereupon allot candidates to the concerned institutions strictly in order of merit as per vacancy.28. Perusal of Sub--rule (6) of Rule 5 of the said Rules would reveal that if the Management defaults in making appointment of candidates allotted by the Director, he shall be competent to withhold the individual teachers cost of the grant-in-aid to be paid to the institution concerned. He is also entitled to take steps to supersede the Managing Committee or the Governing Body, as the case may be. Under Sub--rule (8) of Rule 5 of the said Rules, the relaxation is granted for filling up the vacancies for a period of six months or till the date of receipt of the list as referred to in Sub--rule (2) of Rule 5 of the said Rules. However, the same has to be with the prior approval of the Inspector in respect of an institution other than a College and of the Director in respect of a College.30. It could thus be clearly seen that a detailed selection procedure is prescribed for making appointment of vacancies arising in Aided Educational Institution.31. Perusal of the approval order dated 12th September, 1980 of the Government of Orissa, Education and Youth Service Department, would reveal that for each M.E. School, only two posts, i.e., one post of a Trained Graduate Headmaster and one post of a Trained Matric Teacher, have been sanctioned. The order clearly provides that no other post of teaching and non--teaching staff would be permitted.32. It is not in dispute that the appointment of all the applicants/respondents/teachers have been made directly by the respective Management without following the procedure as prescribed under the Rules/Statute. It is a trite law that the appointments made in contravention of the statutory provisions are void ab initio. Reference in this respect could be made to the judgments of this Court in the cases of Ayurvidya Prasarak Mandal and another vs. Geeta Bhaskar Pendse (Mrs) and others (1991) 3 SCC 246, J & K Public Service Commission and others vs. Dr. Narinder Mohan and others (1994) 2 SCC 630, Official Liquidator vs. Dayanand and others (2008) 10 SCC 1, and Union of India and another vs. Raghuwar Pal Singh (2018) 15 SCC 463 .33. We are unable to accept the contention raised by Shri Gaurav Agrawal and Shri R. Balasubramanian that since the applicants/teachers were appointed on posts which were not on grant-in-aid basis, the said Rules are not applicable. The said Rules would clearly show that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard deserves to be rejected.34. We further find that the Tribunal, while delivering the judgment and order dated 18th May, 2017 and 30th January, 2018, has failed to take into consideration the earlier orders dated 25th June, 2013 and 23rd September, 2013 delivered by the same Tribunal. In the said orders of 2013, the Tribunal had elaborately considered the provisions of the said Rules and found no merit in the contentions raised on behalf of the applicants therein. The orders passed by the Tribunal ignoring its earlier orders, which were passed elaborately considering the scheme of the said Rules, are totally contrary to the well- established norms of judicial propriety. The situation becomes graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2) of 1996 with regard to the same relief was rejected by the Tribunal vide its earlier order dated 12th April, 2012. The orders passed by the Tribunal are, therefore, totally unsustainable in view of the law laid down by this Court in the case of Official Liquidator vs. Dayanand and others (supra). Not only this, the Tribunal as well as the High Court has failed to take into consideration the order passed by this Court on 2nd December, 1996 in Civil Appeal No. 15712 of 1996 (1997) 2 SCC 635 .35. The impugned order passed by the High Court depicts total non--application of mind. Whereas the cause title would itself show that a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned judgment, the High Court observed that the order dated 18th May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged by the State. Whereas the teachers have hardly worked for four years and a substantial part thereof on account of interim orders passed by the High Court, the High Court goes on to observe that the teachers have worked for a period of more than 20 years. No reasons, leave aside sound reasons, are reflected in the impugned order while dismissing the writ petitions filed by the State.In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359, wherein this Court has held as under:27. A petition for leave to appeal to this Court may be dismissed by a non--speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non--speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.37. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court. As such, the contention in that regard is rejected.38. We are, therefore, of the considered view that the Tribunal has erred in allowing the Original Applications of the applicants/teachers. Similarly, the High Court has also erred in dismissing the petitions filed by the appellants. | 1 | 5,839 | 1,670 | ### 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:
the said Rules are not applicable. The said Rules would clearly show that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard deserves to be rejected. 34. We further find that the Tribunal, while delivering the judgment and order dated 18th May, 2017 and 30th January, 2018, has failed to take into consideration the earlier orders dated 25th June, 2013 and 23rd September, 2013 delivered by the same Tribunal. In the said orders of 2013, the Tribunal had elaborately considered the provisions of the said Rules and found no merit in the contentions raised on behalf of the applicants therein. The orders passed by the Tribunal ignoring its earlier orders, which were passed elaborately considering the scheme of the said Rules, are totally contrary to the well- established norms of judicial propriety. The situation becomes graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2) of 1996 with regard to the same relief was rejected by the Tribunal vide its earlier order dated 12th April, 2012. The orders passed by the Tribunal are, therefore, totally unsustainable in view of the law laid down by this Court in the case of Official Liquidator vs. Dayanand and others (supra). Not only this, the Tribunal as well as the High Court has failed to take into consideration the order passed by this Court on 2nd December, 1996 in Civil Appeal No. 15712 of 1996 (1997) 2 SCC 635 . 35. The impugned order passed by the High Court depicts total non--application of mind. Whereas the cause title would itself show that a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned judgment, the High Court observed that the order dated 18th May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged by the State. Whereas the teachers have hardly worked for four years and a substantial part thereof on account of interim orders passed by the High Court, the High Court goes on to observe that the teachers have worked for a period of more than 20 years. No reasons, leave aside sound reasons, are reflected in the impugned order while dismissing the writ petitions filed by the State. 36. That leaves us with the submission of Shri R. Balasubramanian, learned Senior Counsel that since the view taken by the Tribunal has been affirmed by the High Court and the Special Leave Petition challenging the same has been dismissed, the view of the Tribunal has become final. In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359, wherein this Court has held as under: 27. A petition for leave to appeal to this Court may be dismissed by a non--speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non--speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. [emphasis supplied] 37. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court. As such, the contention in that regard is rejected. 38. We are, therefore, of the considered view that the Tribunal has erred in allowing the Original Applications of the applicants/teachers. Similarly, the High Court has also erred in dismissing the petitions filed by the appellants.
### Response:
1
### Explanation:
Liquidator vs. Dayanand and others (2008) 10 SCC 1, and Union of India and another vs. Raghuwar Pal Singh (2018) 15 SCC 463 .33. We are unable to accept the contention raised by Shri Gaurav Agrawal and Shri R. Balasubramanian that since the applicants/teachers were appointed on posts which were not on grant-in-aid basis, the said Rules are not applicable. The said Rules would clearly show that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard deserves to be rejected.34. We further find that the Tribunal, while delivering the judgment and order dated 18th May, 2017 and 30th January, 2018, has failed to take into consideration the earlier orders dated 25th June, 2013 and 23rd September, 2013 delivered by the same Tribunal. In the said orders of 2013, the Tribunal had elaborately considered the provisions of the said Rules and found no merit in the contentions raised on behalf of the applicants therein. The orders passed by the Tribunal ignoring its earlier orders, which were passed elaborately considering the scheme of the said Rules, are totally contrary to the well- established norms of judicial propriety. The situation becomes graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2) of 1996 with regard to the same relief was rejected by the Tribunal vide its earlier order dated 12th April, 2012. The orders passed by the Tribunal are, therefore, totally unsustainable in view of the law laid down by this Court in the case of Official Liquidator vs. Dayanand and others (supra). Not only this, the Tribunal as well as the High Court has failed to take into consideration the order passed by this Court on 2nd December, 1996 in Civil Appeal No. 15712 of 1996 (1997) 2 SCC 635 .35. The impugned order passed by the High Court depicts total non--application of mind. Whereas the cause title would itself show that a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned judgment, the High Court observed that the order dated 18th May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged by the State. Whereas the teachers have hardly worked for four years and a substantial part thereof on account of interim orders passed by the High Court, the High Court goes on to observe that the teachers have worked for a period of more than 20 years. No reasons, leave aside sound reasons, are reflected in the impugned order while dismissing the writ petitions filed by the State.In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359, wherein this Court has held as under:27. A petition for leave to appeal to this Court may be dismissed by a non--speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non--speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.37. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court. As such, the contention in that regard is rejected.38. We are, therefore, of the considered view that the Tribunal has erred in allowing the Original Applications of the applicants/teachers. Similarly, the High Court has also erred in dismissing the petitions filed by the appellants.
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Shreyans Industries Ltd Vs. Punjab State Electricity Board and Ors | 1. Leave granted in Special Leave Petition (Civil) No. 29155 of 2011. All these appeals which were heard analogously are directed against the common judgment and order of the High Court of Punjab and Haryana at Chandigarh by which the LPAs filed against the dismissal of writ petitions filed by the Appellants have also been dismissed. The challenge in the writ petitions filed was against the levy of surcharge on the Appellants for not converting from 11 KV to 66 KV transmission. As the bills raised/submitted were of the year 2007, we will understand the period of time required to be considered to be relatable to the tariff orders for the years 2004-2005, 2005-2006 and 2006-2007.2. The Appellants are electricity consumers of the genera] category who were drawing power at 11 KV. Under different notifications, issued from time to time, while other consumers like Induction Furnaces and Arc Furnaces were required to migrate to 66 KV transmission and in the interregnum pay surcharge at the stipulated rate, there was no such requirement for the Appellants. The first time that such a stipulation came was in the ARR for the year 2004-2005 which was brought in by a corrigendum dated 15th September, 2004 issued well after the conclusion of the public hearings on the published Annual Revenue Requirement (concluded on 3rd September, 2004). The net result of the above would be that so far as the consumers of the category to which the Appellants belong were made to suffer the levy of surcharge without an opportunity of hearing against the proposed levy. The point though not urged in the pleadings contained in the writ petitions appears to have been projected before the High Court in the course of the hearing. The High Court understood the corrigendum to be a beneficial exercise for the consumers and, therefore, discarded the plea urged with regard to violation of the principles of natural justice.3. Having read and considered the corrigendum we are of the view that the same has been misconstrued by the High Court inasmuch as the benefit thereunder was afforded only to are furnaces and the general category consumers like the Appellants were brought in within the framework of the surcharge for the first time by the said corrigendum. It is on the aforesaid basis and in view of the provisions of Section 64(3) of the Electricity Act, 2003 that we are considering the appeals notwithstanding the fact that there was no challenge by the Appellants to the tariff order(s) of any of the three years which issue is not being dealt with by us in the present order.4. As the provisions of Section 64(3) of the Electricity Act, 2003 appears to have been infringed and the levy of surcharge imposed on the Appellants were without adequate notice and opportunity to them we are of the view that insofar as the year 2004-2005 is concerned, the Appellants ought to be afforded the necessary relief. We have considered the options available to us at this stage insofar as grant of relief is concerned, specifically, in a situation where over a decade has elapsed in the meantime. Having debated and considered the precise relief that would be in consonance with the principles of justice we are of 6 the view that so far as the year 2004-2005 is concerned the bills raised against the Appellants on account of levy of surcharge should be to that extent interfered with by us. We make it clear that the above relief will be confined only to the present Appellants who have approached this Court.5. We have perused the tariff orders along with the extracts of the ARR for the years 2005-2006 and 2006-2007 which have been placed before us by Shri V. Giri, learned Senior Counsel appearing for the Respondents. The tariff orders for the aforesaid two years do not indicate any fundamental flaw which would require us to interfere either with the exercise undertaken or the refusal of the High Court to interfere with the same to the remaining extent, namely, the years 2005-2006 and 2006-2007. It appears from a reading of the aforesaid two tariff orders that the abridged version of the ARR was duly published; objections were invited/received and duly considered and thereafter the matter was proceeded with. | 1[ds]3. Having read and considered the corrigendum we are of the view that the same has been misconstrued by the High Court inasmuch as the benefit thereunder was afforded only to are furnaces and the general category consumers like the Appellants were brought in within the framework of the surcharge for the first time by the said corrigendum. It is on the aforesaid basis and in view of the provisions of Section 64(3) of the Electricity Act, 2003 that we are considering the appeals notwithstanding the fact that there was no challenge by the Appellants to the tariff order(s) of any of the three years which issue is not being dealt with by us in the present order4. As the provisions of Section 64(3) of the Electricity Act, 2003 appears to have been infringed and the levy of surcharge imposed on the Appellants were without adequate notice and opportunity to them we are of the view that insofar as the year 2004-2005 is concerned, the Appellants ought to be afforded the necessary relief. We have considered the options available to us at this stage insofar as grant of relief is concerned, specifically, in a situation where over a decade has elapsed in the meantime. Having debated and considered the precise relief that would be in consonance with the principles of justice we are of 6 the view that so far as the year 2004-2005 is concerned the bills raised against the Appellants on account of levy of surcharge should be to that extent interfered with by us. We make it clear that the above relief will be confined only to the present Appellants who have approached this Court5. We have perused the tariff orders along with the extracts of the ARR for the years 2005-2006 and 2006-2007 which have been placed before us by Shri V. Giri, learned Senior Counsel appearing for the Respondents. The tariff orders for the aforesaid two years do not indicate any fundamental flaw which would require us to interfere either with the exercise undertaken or the refusal of the High Court to interfere with the same to the remaining extent, namely, the years 2005-2006 and 2006-2007. It appears from a reading of the aforesaid two tariff orders that the abridged version of the ARR was duly published; objections were invited/received and duly considered and thereafter the matter was proceeded with7. There is another dimension of the case in one of the appeals, namely, Civil Appeal Nos. 6293-6294 of 2013 where there is a categorical assertion on the part of the Appellant therein that the Appellant had tendered payment of the necessary charges for conversion to 66 KV on 28th August, 2006. The line was energized on 31st March, 2008. Relying on clause 5.8 of the Electricity Supply Regulations, 2004 it is contended that the Appellant would not be liable to pay surcharge for the period from the date of the deposit of the costs for the switch over to 66 KV, namely, from 28th August, 2006. | 1 | 766 | 545 | ### 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. Leave granted in Special Leave Petition (Civil) No. 29155 of 2011. All these appeals which were heard analogously are directed against the common judgment and order of the High Court of Punjab and Haryana at Chandigarh by which the LPAs filed against the dismissal of writ petitions filed by the Appellants have also been dismissed. The challenge in the writ petitions filed was against the levy of surcharge on the Appellants for not converting from 11 KV to 66 KV transmission. As the bills raised/submitted were of the year 2007, we will understand the period of time required to be considered to be relatable to the tariff orders for the years 2004-2005, 2005-2006 and 2006-2007.2. The Appellants are electricity consumers of the genera] category who were drawing power at 11 KV. Under different notifications, issued from time to time, while other consumers like Induction Furnaces and Arc Furnaces were required to migrate to 66 KV transmission and in the interregnum pay surcharge at the stipulated rate, there was no such requirement for the Appellants. The first time that such a stipulation came was in the ARR for the year 2004-2005 which was brought in by a corrigendum dated 15th September, 2004 issued well after the conclusion of the public hearings on the published Annual Revenue Requirement (concluded on 3rd September, 2004). The net result of the above would be that so far as the consumers of the category to which the Appellants belong were made to suffer the levy of surcharge without an opportunity of hearing against the proposed levy. The point though not urged in the pleadings contained in the writ petitions appears to have been projected before the High Court in the course of the hearing. The High Court understood the corrigendum to be a beneficial exercise for the consumers and, therefore, discarded the plea urged with regard to violation of the principles of natural justice.3. Having read and considered the corrigendum we are of the view that the same has been misconstrued by the High Court inasmuch as the benefit thereunder was afforded only to are furnaces and the general category consumers like the Appellants were brought in within the framework of the surcharge for the first time by the said corrigendum. It is on the aforesaid basis and in view of the provisions of Section 64(3) of the Electricity Act, 2003 that we are considering the appeals notwithstanding the fact that there was no challenge by the Appellants to the tariff order(s) of any of the three years which issue is not being dealt with by us in the present order.4. As the provisions of Section 64(3) of the Electricity Act, 2003 appears to have been infringed and the levy of surcharge imposed on the Appellants were without adequate notice and opportunity to them we are of the view that insofar as the year 2004-2005 is concerned, the Appellants ought to be afforded the necessary relief. We have considered the options available to us at this stage insofar as grant of relief is concerned, specifically, in a situation where over a decade has elapsed in the meantime. Having debated and considered the precise relief that would be in consonance with the principles of justice we are of 6 the view that so far as the year 2004-2005 is concerned the bills raised against the Appellants on account of levy of surcharge should be to that extent interfered with by us. We make it clear that the above relief will be confined only to the present Appellants who have approached this Court.5. We have perused the tariff orders along with the extracts of the ARR for the years 2005-2006 and 2006-2007 which have been placed before us by Shri V. Giri, learned Senior Counsel appearing for the Respondents. The tariff orders for the aforesaid two years do not indicate any fundamental flaw which would require us to interfere either with the exercise undertaken or the refusal of the High Court to interfere with the same to the remaining extent, namely, the years 2005-2006 and 2006-2007. It appears from a reading of the aforesaid two tariff orders that the abridged version of the ARR was duly published; objections were invited/received and duly considered and thereafter the matter was proceeded with.
### Response:
1
### Explanation:
3. Having read and considered the corrigendum we are of the view that the same has been misconstrued by the High Court inasmuch as the benefit thereunder was afforded only to are furnaces and the general category consumers like the Appellants were brought in within the framework of the surcharge for the first time by the said corrigendum. It is on the aforesaid basis and in view of the provisions of Section 64(3) of the Electricity Act, 2003 that we are considering the appeals notwithstanding the fact that there was no challenge by the Appellants to the tariff order(s) of any of the three years which issue is not being dealt with by us in the present order4. As the provisions of Section 64(3) of the Electricity Act, 2003 appears to have been infringed and the levy of surcharge imposed on the Appellants were without adequate notice and opportunity to them we are of the view that insofar as the year 2004-2005 is concerned, the Appellants ought to be afforded the necessary relief. We have considered the options available to us at this stage insofar as grant of relief is concerned, specifically, in a situation where over a decade has elapsed in the meantime. Having debated and considered the precise relief that would be in consonance with the principles of justice we are of 6 the view that so far as the year 2004-2005 is concerned the bills raised against the Appellants on account of levy of surcharge should be to that extent interfered with by us. We make it clear that the above relief will be confined only to the present Appellants who have approached this Court5. We have perused the tariff orders along with the extracts of the ARR for the years 2005-2006 and 2006-2007 which have been placed before us by Shri V. Giri, learned Senior Counsel appearing for the Respondents. The tariff orders for the aforesaid two years do not indicate any fundamental flaw which would require us to interfere either with the exercise undertaken or the refusal of the High Court to interfere with the same to the remaining extent, namely, the years 2005-2006 and 2006-2007. It appears from a reading of the aforesaid two tariff orders that the abridged version of the ARR was duly published; objections were invited/received and duly considered and thereafter the matter was proceeded with7. There is another dimension of the case in one of the appeals, namely, Civil Appeal Nos. 6293-6294 of 2013 where there is a categorical assertion on the part of the Appellant therein that the Appellant had tendered payment of the necessary charges for conversion to 66 KV on 28th August, 2006. The line was energized on 31st March, 2008. Relying on clause 5.8 of the Electricity Supply Regulations, 2004 it is contended that the Appellant would not be liable to pay surcharge for the period from the date of the deposit of the costs for the switch over to 66 KV, namely, from 28th August, 2006.
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ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED Vs. BISHAL JAISWAL & ANR | 11337 : (2017) 4 KLJ 80 , the Kerala High Court held: 7. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirement of law for a valid acknowledgement under Section 18 of the Act. We may recapitulate the words of Mr. Justice P. Subramonian Poti in Krishnan Assari v. Akilakerala Viswakarma Maha Sabha [1980 KLT 515 (DB)] and the following is the extract: 10. How far the balance sheets could be acted upon in deciding the claim of the appellant is the next question. The appellant relies on the balance sheets as acknowledgement of liability contemplated in S. 18 of the Limitation Act, 1963. Under S. 18 an acknowledgement of liability signed by the party against whom the right is claimed gives rise to a fresh period of limitation. Under Explanation (b) to the Section the word signed means signed either personally or by an agent duly authorised. A company being a corporate body acts through its representatives, the Managing Director and the Board of Directors. Under S. 210 of the Companies Act it is the statutory duty of the Board of Directors to lay before the Company at every annual general body meeting a balance sheet and a profit and loss account for the preceding financial year. S. 211 directs that the form and contents of the balance sheet should be as set out in Part I of Schedule VI. The said form stipulates for the details of the loans and advances and also of sundry creditors. The balance sheet should be approved by the Board of Directors, and thereafter authenticated by the Manager or the Secretary if any and not less than two directors one of whom should be the Managing Director. (See S. 215). The Act also provides for supply of copies of the balance sheet to the members before the company in general meeting. Going by the above provisions, a balance sheet is the statement of assets and liabilities of the company as at the end of the financial year, approved by the Board of Directors and authenticated in the manner provided by law. The persons who authenticate the document do so in their capacity as agents of the company. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirements of law for a valid acknowledgement under S. 18 of the Limitation Act, even though the directors by authenticating the balance sheet merely discharge a statutory duty and may not have intended to make an acknowledgement. 31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held: 5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:— 7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point. 6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed. 32. In Agni Aviation Consultants v. State of Telangana, 2020 SCC OnLine TS 1462 : (2020) 5 ALD 561, the High Court of Telangana held: 107. In several cases, various High Courts have held that an acknowledgement of liability in the balance sheet by a Company registered under the Companies Act, 1956 extends the period of limitation though it is not addressed to the creditor specifically. (Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, Bhajan Singh Samra v. Wimpy International Ltd., 2012 SCC OnLine Del 2939, Vijay Kumar Machinery and Electrical Stores v. Alaparthi Lakshmi Kanthamma, (1969) 74 ITR 224 (AP) , and Bengal Silk Mills Company, Raja of Vizianagram v. Official Liquidator, Vizianagram Mining Company Limited, AIR 1952 Mad 1361). 108. Therefore it is not necessary that the acknowledgement of liability must be contained in a document addressed to the creditor i.e. the petitioners in the instant case. 33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020. 34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also. 35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34. | 1[ds]A perusal of the above would show that considering that the Limitation Act applies only to courts, unless made statutorily applicable to tribunals, the Committee was of the view that such Act should be made to apply to the IBC as well, observing that though the IBC is not a debt recovery law, the trigger being default in payment of debt would render the exclusion of the law of limitation counter-intuitive. Thus, it was made clear that an application to the IBC should not amount to resurrection of time-barred debts which, in any other forum, would have been dismissed on the ground of limitation.7. From the above, it is clear that the principle of Section 9 of the Limitation Act is to be strictly adhered to, namely, that when time begins to run, it cannot be halted, except by a process known to law. One question that arises before this Court is whether Section 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, is also applicable under Section 238A, given the expression as far as may be governing the applicability of the Limitation Act to the IBC.8. The aforesaid question is no longer res integra as two recent judgments of this Court have applied the provisions of Section 14 and Section 18 of the Limitation Act to the IBC. Thus, in Sesh Nath Singh v. Baidyabati Sheoraphuli Co-operative Bank Ltd., Civil Appeal No. 9198 of 2019 (decided on 22.03.2021), after setting out the issues that arose in that case in paragraph 57, and after referring to Section 238A of IBC, held:66. Similarly under Section 18 of the Limitation Act, an acknowledgement of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing of a fresh period of limitation, from the date on which the acknowledgement is signed. However, the acknowledgement must be made before the period of limitation expires.67. As observed above, Section 238A of the IBC makes the provisions of the Limitation Act, as far as may be, applicable to proceedings before the NCLT and the NCLAT. The IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT/NCLAT. All the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible.68. We see no reason why Section 14 or 18 of the Limitation Act, 1963 should not apply to proceeding under Section 7 or Section 9 of the IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order of the NCLAT does not proceed on the basis of any acknowledgement.10. Given the aforesaid, it is not possible to accede to the arguments made by Shri Sinha that Section 18 of the Limitation Act cannot be made applicable by reason of the arguments put forth by him. As has been held in Ambika Prasad Mishra v. State of U.P., (1980) 3 SCC 719, every argumentative novelty does not undo a settled position of law. Krishna Iyer, J., speaking for a Bench of five learned Judges, stated thus:5. … But, after listening to the Marathon erudition from eminent counsel, a 13-Judge Bench of this Court upheld the vires of Article 31-A in unequivocal terms. That decision binds, on the simple score of stare decisis and the constitutional ground of Article 141. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparkling with creative ingenuity and presented with high pressure advocacy, cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic Fundamental Rights case [(1973) 4 SCC 225 : 1973 Supp SCR 1]. From Kameshwar Singh [AIR 1952 SC 252 : 1952 SCR 889 : 1952 SCJ 354 ] (1952) and Golak Nath [I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 : (1967) 2 SCR 762 : (1967) 2 SCJ 486 ] (1967) through Kesavananda [(1973) 4 SCC 225 : 1973 Supp SCR 1] (1973) and Kanan Devan [Kanan Devan Hills Produce Co. Ltd. v. State of Kerala, (1973) 1 SCR 356 : (1972) 2 SCC 218 : AIR 1972 SC 2301 ] (1972) to Gwalior Rayons [State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg). Co. Ltd.(1973) 2 SCC 713 : (1974) 1 SCR 671 ] (1976) and after Article 31-A has stood judicial scrutiny although, as stated earlier, we do not base the conclusion on Article 31-A. Even so, it is fundamental that the nations Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow up. This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shake-up. It is surely wrong to prove Justice Roberts of the United States Supreme Court right when he said: [Smith v. Allwright, 321 US 649, 669, 670 (1944)]The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket good for this day and train only…. It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.12. In an illuminating discussion on the reach of Section 18 of the Limitation Act, including the reach of the Explanation to the said Section, this Court, in Khan Bahadur Shapoor Fredoom Mazda v. Durga Prasad, (1962) 1 SCR 140 [Shapoor Fredoom Mazda], after referring to Section 19 of the Limitation Act, 1908, which corresponds to Section 18 of the 1963 Act, held:It is thus clear that acknowledgement as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgement of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgement rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.(at pages 144-145)15. Likewise, in a case concerning the dishonour of a cheque under Section 138 of the Negotiable Instruments Act, 1881, this Court, in A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642 [A.V. Murthy], held:5. … It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31-3-1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent.The judgment in A.V. Murthy (supra) was followed in S. Natarajan vs. Sama Dharman, Crl. A. No. 1524 of 2014 (decided on 15.07.2014) as follows:7. In this connection, we may usefully refer to a judgment of this Court in A.V. Murthy v. B.S. Nagabasavanna [A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642] where the accused had alleged that the cheque issued by him in favour of the complainant in respect of sum advanced to the accused by the complainant four years ago was dishonoured by the bank for the reasons account closed. The Magistrate had issued summons to the accused. The Sessions Court quashed the proceedings on the ground that the alleged debt was barred by limitation at the time of issuance of cheque and, therefore, there was no legally enforceable debt or liability against the accused under the Explanation to Section 138 of the NI Act and, therefore, the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that Under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under Sub-section (3) of Section 25 of the Contract Act, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Referring to the facts before it, this Court observed that the complainant therein had submitted his balance sheet, prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. …16. An exhaustive judgment of the Calcutta High Court in Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128 : AIR 1962 Cal 115 [Bengal Silk Mills] held that an acknowledgement of liability that is made in a balance sheet can amount to an acknowledgement of debt as follows:9. In support of the contention that the balance-sheets do not amount to acknowledgements of liability, because they were prepared under compulsion of law Mr. Banerji relies upon the decision in Kashinath v. New Akot Ginning and Pressing Co. Ltd., I.L.R. 1950 Nag. 562 at 568 : A.I.R. 1951 Nag. 255. It is true that the balance-sheets were required to be made both by the Indian Companies Act, 1913 as also by the articles of association of the defendant company. There was a compulsion upon the managing agents to prepare the documents but there was no compulsion upon them to make any particular admission. They faithfully discharged their duty and in doing so they made honest admissions of the Companys liabilities. Those admissions, though made in discharge of their duty, are nevertheless conscious and voluntary admissions. A document is not taken out of the purview of section 19 of the Indian Limitation Act merely on the ground that it is made under compulsion of law, see Venkata v. Partha Saradhi, 1892 I.L.R. 16 Mad. 220 at 222, Udaya Thevar v. Subrahmania Chetti, (1896) 6 M.L.J. 266, 269, Good v. Jane Job, 120 E.R. 810 at 812. I am unable to agree with the reasoning of the Nagpur decision that a balance-sheet does not save limitation because it is drawn up under a duty to set out the claims made on the company and not with the intention of acknowledging liability. The balance-sheet contains admissions of liability; the agent of the company who makes and signs it intends to make those admissions. The admissions do not cease to be acknowledgements of liability merely on the ground that they were made in discharge of a statutory duty. I notice that in the Nagpur case the balance-sheet had been signed by a director and had not been passed either by the Board of Directors or by the company at its annual general meeting and it seems that the actual decision may be distinguished on the ground that the balance-sheet was not made or signed by a duly authorized agent of the company.10. Mr. Banerji next contends that none of the balance-sheets contains an admission of liability subsisting on the date of which it is made. According to him the balance-sheet for the year ended 30-11-1936 which was made on 1-6-1937 contains an admission of past liability as on 30-11-1936 but not an admission of liability existing on 1-6-1937. Mr. Banerji contends that such an admission does not satisfy the test of an acknowledgement under section 19 of the Indian Limitation Act. His contention is supported by Jwala Prasad v. Jwala Bank Ltd., A.I.R. 1957 All. 143 at 145. In that case the Allahabad High Court held that the balance-sheet did not contain any acknowledgement of an existing liability and therefore could not be treated as an acknowledgement under section 19. Mr. Banerji also relied upon the decisions in Kandasami Reddi v. Suppammal, I.L.R. 45 Mad. 443 , Venkata v. Partha Saradhi, I.L.R. 18 Mad. 220, Rustomji on Limitation, 6th Edition, pages 191–193 and the cases collected therein. Now it is well settled that in order to satisfy the test of an acknowledgement under section 19 the admission of liability must be an admission of subsisting liability. In Kandasami Reddi v. Suppammal, I.L.R. 45 Mad. 443 at 445, Ayling J. said, Liability can only signify present liability at the time of acknowledgement and this is clearly laid down in Venkata v. Parthasaradhi, (1893) 16 Mad. 220. In Venkata v. Parthasaradhi, I.L.R. 16 Mad. 220 at 223 Muttasami Ayyar, J. said, It is therefore necessary that upon a reasonable construction of the language used by the debtor in writing the relation of debtor and creditor must appear to be distinctly admitted, that it must be admitted also to be a subsisting jural relation, and then an intention to continue it until it is lawfully determined must also be evident. The section requires a definite admission of liability in respect of the debt, but even an admission that the debt existed at a previous date may, having regard to the language used and the surrounding circumstances, amount to an implied representation that the debt is still subsisting (see Maniram Seth v. Seth Rupchand, I.L.R. 33 Cal. 1047 P.C.). In my opinion the balance-sheets satisfy the test of an acknowledgement under section 19. Each of them contains an admission that balances have been struck at the end of the previous year and that a definite sum has been found to be the balance then due to the creditor. The natural inference to be drawn from the balance-sheet is that the closing balance due to the creditor at the end of the previous year will be carried forward as the opening balance due to him at the beginning of the next year. In each balance-sheet there is thus an admission of a subsisting liability to continue the relation of debtor and creditor and a definite representation of a present intention to keep the liability alive until it is lawfully determined by payment or otherwise. There is necessarily a time lag between the date of the signing of the balance-sheet and the end of the previous year. The balance-sheet contains no admission of the amount due on the date of the signature, that amount may be and often is different from the amount shown as due at the end of the previous year, but that fact alone does not take the document out of the purview of section19. Take the case of a banker and its depositor. Suppose the banker sends to the depositor a monthly statement of account made for the month of February 1961 and signed on March 15, 1961. The statement gives the balance due on February 28, 1961. The amount due on March 15 may be quite different; the banker might have been made payments for the customer, nevertheless the statement amounts to a sufficient acknowledgement under section 19. I am therefore unable to agree with the decision in Jwala Prasad v. Jwala Bank Ltd., A.I.R. 1957 All. 144.11. To come under section 19 an acknowledgement of a debt need not be made to the creditor nor need it amount to a promise to pay the debt. In England it has been held that a balance-sheet of a company stating the amount of its indebtedness to the creditor is a sufficient acknowledgement in respect of a specialty debt under section 5 of the Civil Procedure Act, 1833 (3 and 4 Will — 4c. 42), see Re: Atlantic and Pacific Fibre Importing and Manufacturing Co. Ltd., 1928 Ch. 836 under section 1 of Lord Tentendens Act, 1828 (9 Geo. 4, c. 14) read with section 13 of the Mercantile Law Amendment Act, 1856 (19 and 20 Vict. c. 97), see Re: The Coliseum (Burrow) Ltd., (1930) 2 Ch. 44 at 47 and under sections 23 and 24 of the Limitation Act, 1939 (c. 21), see Ledingham v. Bermejo Estancia Co. Ltd., (1947) 1 A.E.R. 749 and Jones v. Bellgrove Properties Ltd., (1949) 2 K.B. 700, on appeal from (1949) 1 A.E.R. 498. Section 5 of the Civil Procedure Act, 1833 did not require that the acknowledgement should be given to the claiming creditor and consequently a balance-sheet containing an admission of indebtedness to the debenture holders was a sufficient acknowledgement of liability in respect of the debentures under that section, though it was sent only to the debenture holders who happened to be the shareholders of the company and not to the other debenture holders, see Re: Atlantic and Pacific Fibre Importing and Manufacturing Co. Ltd., (1928) 1 Ch. 836. Under Tentendens Act, 1828 as also under the Limitation Act, 1939 (c. 21) the acknowledgement must be made to the creditor or his agent and if the balance- sheet is sent to a shareholder who is also a creditor the requirements of those Acts were satisfied, see Re: The Coliseum (Burrow) Ltd., (1930) 2 Ch. 44 at 47, Jones v. Bellgrove Properties Ltd., (1949) 1 A.E.R. 498 at 504 affirmed (1949) 2 K.B. 700. The decision in the last case has been followed in India and it has been held that an admission of indebtedness in a balance-sheet is a sufficient acknowledgement under section 19 of the Indian Limitation Act, see Raja of Vizianagram v. Official Liquidator, Vizianagram Mining Co. Ltd., (1951) 2 M.L.J. 535 at 550-1 : A.I.R. 1952 Mad. 136 at 145, Lahore Enamelling and Stamping Co. Ltd. v. A.K. Bhalla, A.I.R. 1958 Punjab 341 at 347, First National Bank Ltd. v. The Mandi (State) Industries Ltd., (1957) 59 Punjab Law Reports 589 and in an unreported decision of S.R. Das Gupta, J. in matter No. 449 of 1955 Re: Vita Supplies Corporation Ltd. decided on December 7, 1956.Importantly, this judgment holds that though the filing of a balance sheet is by compulsion of law, the acknowledgement of a debt is not necessarily so. In fact, it is not uncommon to have an entry in a balance sheet with notes annexed to or forming part of such balance sheet, or in the auditors report, which must be read along with the balance sheet, indicating that such entry would not amount to an acknowledgement of debt for reasons given in the said note.17. Bengal Silk Mills (supra) also dealt with the judgment in Kashinath Sankarappa v. New Akot Cotton Ginning & Pressing Co. Ltd., 1949 SCC OnLine MP 123 : AIR 1951 Nag 255 [Kashinath] by distinguishing the said judgment on the ground that the balance sheet in that case was not made or signed by a duly authorised agent of the company. Quite apart from this, if the said judgment is perused, what becomes clear is that the observation made in paragraph 20 is really an obiter observation, as the High Court went on to hold in paragraph 26 that the balance sheets that were produced were never proved in accordance with law, apart from being validly rejected by the shareholders, as a result of which, such balance sheets could not, therefore, operate as acknowledgements of liability under Section 19 of the Limitation Act, 1908.19. Two other judgments – of the Andhra Pradesh High Court and the Gauhati High Court – were also relied upon by the counsel for the respondents. So far as the Andhra Pradesh High Court is concerned, in Vijayalakshmi v. Hari Hara Ginning and Pressing, Nandigaon, OS A No. 40 of 1998 (decided on 03.03.1999), Liberhan, C.J. differed from a Karnataka High Court judgment which stated that showing of an amount in a balance sheet would amount to an acknowledgement under Section 18 of the Limitation Act. This was done as follows:5. The learned Counsel for the appellant relied on a decision of the Karnataka High Court in State Bank of India v. Hegde and Golay Ltd., 1985 SCC OnLine Kar 428 : ILR 1987 Kar 2673, wherein it is observed that showing of an amount in a balance sheet amounts to an acknowledgement in terms of the Indian Limitation Act. Consequently, the amount having been admitted and the respondent having not paid the same, the petition required admission as laid down by the said judgment that civil suit as well as legal proceedings can continue simultaneously. Without expressing our opinion on the law laid down in the said judgment, though it cannot be categorically laid down that mere showing a debt due in a balance-sheet would amount to acknowledgement, we may observe that it is a well-established law that for giving an acknowledgement, a person has to be conscious of his act to the knowledge of the other person. Merely showing a debt in a balance-sheet cannot, prima facie, as presently advised, be termed to be an acknowledgement in terms of the Indian Limitation Act. The acknowledgement as envisaged by the Limitation Act categorically had to be with the intention of accepting the debt with the object of extending the limitation for recovery, which is not the case herein. Thus, we do not find the case in hand to be covered by the law laid down by the said judgment though we have our own doubts with respect to correctness of the law laid down in the said judgment.This judgment does not, in any manner, even purport to lay down the law. That apart, the statement that an acknowledgement, as envisaged by the Limitation Act, has to be with the intention of accepting the debt with the object of extending the limitation for recovery is de hors Section 18 of the Limitation Act and directly contrary to Shapoor Fredoom Mazda (supra) which is, in fact, referred to in the very next paragraph of the aforesaid judgment. Shapoor Fredoom Mazda (supra) had made it plain that all that was necessary was that the acknowledgement establishes a jural relationship of debtor and creditor, which undoubtedly was established on the facts of that case. This judgment, therefore, cannot avail the respondents.20. Reliance was also placed on a judgment of the Gauhati High Court in Ajit Chandra Bagchi v. Harishpur Tea Company (P.) Ltd., 1990 SCC OnLine Gau 24 : AIR 1991 Gau 92. In particular, paragraphs 9 and 10 were relied upon by learned counsel for the respondents. These paragraphs state:9. I may now turn to the next submission of learned counsel for the appellants - defendants that the plaintiff failed to prove that the amounts in question were due from the defendants. The contention of the counsel is that the plaintiff simply produced before the court certain books of account and balance sheets. No effort was made even to prove the individual entries in the said books of account. The claim was sought to be established by the plaintiff simply on the basis of the balance appearing in the books of account of plaintiff itself as outstanding against the Tea Estates of the defendants. It was submitted that the books of account or the balance sheets showing the amount due from the defendants are not sufficient without other evidence to prove the debt. The learned counsel in this connection relied on section 34 of the Evidence Act, which provides that even entries in the books of account regularly kept in the course of business, which are relevant, are alone not sufficient evidence to charge any person with liability. Learned counsel also relied on the Illustration given to the said section, which is as follows:A sues B for Rs. 1000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.On the basis of the aforesaid provision it was submitted that the entries in the books of account showing the defendants to be indebted to the plaintiff for certain amount might be relevant but are not sufficient to prove the debt. In the instant case, the learned counsel submitted, even the entries have not been proved. What is sought to be proved is the balance appearing in the accounts or in the balance sheet as due from the defendants. Such a course is not permissible except in a case of accounts stated. Admittedly, the present case is not one of accounts stated.10. I have carefully considered the submissions. I find that neither the individual entries have been proved by the plaintiff nor there is any material whatsoever other than the books of account or the balance sheet to prove that the transactions in question in fact took place. No decree can therefore, be obtained by the plaintiff merely on the basis of certain entries in the account books or the balance shown to be due at the end of the year in such accounts or in the balance sheets. The admitted position in the instant case is that no evidence has been adduced by the plaintiff to prove the transactions which had been categorically denied by the defendants in their written statement. In that view of the matter even on facts it has to be held that the plaintiffs failed to prove that the amount claimed in the suit was due from the defendants. In view of the aforesaid finding, I am of the opinion that the learned trial court was not justified in decreeing the suit. The suit was barred by limitation except in so far as it relates to recovery of a sum of Rs. 30/-. Besides, the plaintiff also failed to prove the debt in accordance with law. Under the circumstances, the suit should have been dismissed.This judgment also does not take the case of the respondents any further as, like the Nagpur High Court judgment in Kashinath (supra), the entries in the books of accounts were not proved on the facts of that case.22. A perusal of the aforesaid Sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditors report may also enter caveats with regard to acknowledgements made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills (supra), that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgement of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act.23. The judgment in Bengal Silk Mills (supra) has been referred to with approval in various other judgments. Thus, in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana, 1972 SCC OnLine Del 185 : ILR (1972) 2 Del 712, the Delhi High Court held:46. Shri Rameshwar Dial argued that statements in the balance-sheet of a company cannot amount to acknowledgement of liability because the balance-sheet is made under compulsion of the provisions in the Companies Act. There is no force in this argument. In the first place, section 18 of the Limitation Act, 1963, requires only that the acknowledgement of liability must have been made in writing, but it does not prescribe that the writing should be in any particular kind of document. So, the fact that the writing is contained in a balance-sheet is immaterial. In the second place, it is true that section 131 of the Companies Act, 1913 (section 210 of the Companies Act, 1956) makes it compulsory that an annual balance sheet should be prepared and placed before the Company by the Directors, and section 132 (section 211 of the Companies Act, 1956) requires that the balance-sheet should contain a summary, inter alia, of the current liabilities of the company. But, as pointed out by Bachawat J. in Bengal Silk Mills v. Ismail Golam Hossain Ariff, A.I.R. 1962 Calcutta 115 although there was statutory compulsion to prepare the annual balance-sheet, there was no compulsion to make any particular admission, and a document is not taken out of the purview of section 18 of the Indian Limitation Act, 1963 (section 19 of the Indian Limitation Act, 1908) merely on the ground that it is prepared under compulsion of law or in discharge of statutory duty. Reference may also be made to the decisions in Raja of Vizianagram v. Vizianagram Mining Co. Ltd., A.I.R. 1952 Madras 136, Jones v. Bellgrove Properties Ltd., (1949) 1 All E.R. 498; and Lahore Enamelling and Stamping Co. v. A.K. Bhalla, A.I.R. 1958 Punjab 341, in which statements in balance- sheets of companies were held to amount to acknowledgements of liability of the companies.47. Shri Rameshwar Dial referred to the decision of the Privy Council in Consolidated Agencies Ltd. v. Bertram Ltd., (1964) 3 All. E.R. 282. We shall advert to this decision presently when we deal with another argument of Shri Rameshwar Dial, and it is sufficient to state so far as the argument under consideration is concerned that even in this decision of the Privy Council it has been recognised that balance-sheets could in certain circumstances amount to acknowledgements of liability. It cannot, therefore, be said as a general proposition of law that statements in balance-sheets of a company cannot operate at all as acknowledgements of liability as contended by Shri Rameshwar Dial.48. The learned counsel next argued that the words used in the entry in the balance-sheet in the present case did not amount to any acknowledgement of liability. We do not think so. The words used in the entry apparently show that in explaining its current liabilities and the provisions made for the same, it was stated that there was a sum of Rs. 7,87,150.42 held in share- holders suspense account for payment to the share-holders of the Indian National Airways Limited (in voluntary liquidation — since dissolved). The words used clearly acknowledge the liability. The learned single Judge also took the same view as regards the words used in the balance-sheet. In Lahore Enamelling and Stamping Co. Ltd. v. A.K. Bhalla, Tek Chand J. held that debts due to creditors not mentioned by name but included in the item relating to Loans (unsecured) or as due to Sundry Creditors mentioned in the balance-sheet amount to an acknowledgement of liability for the purposes of section 19 of the Indian Limitation Act, 1908. There was thus no force in the argument of the learned counsel.51. The next argument was that the balance-sheet was no doubt signed by two Directors, but they did not sign as duly authorised agents of the transferee company as required by explanation (b) to section 18 of the Limitation Act. There is no substance in this argument. The Companies Act, 1956, came into force in 1956. Section 210 of the Act requires the Board of Directors to lay a balance-sheet before the company at the Annual General Meeting. Section 211 prescribes the form and contents of a balance-sheet. The form of balance-sheet is given in Part 1 of Schedule VI to the Act, and according to it the current liabilities and provisions have to be set out in the balance-sheet. Section 215(i)(ii) requires that the balance-sheet should be signed on behalf of the Board of Directors, inter alia, by the Secretary of the Company and by not less than two Directors of the company. Section 215(3) provides that a balance-sheet shall be approved by the Board of Directors before it is signed on behalf of the Board of Directors in accordance with section 215(i)(ii) and before it is submitted to the Auditors for their report thereon. Thus, the statement of current liabilities and provisions in the balance-sheet has to be approved by the Board of Directors before it is signed by the Secretary and two Directors on behalf of the Board. In other words, the balance-sheet is signed by the Secretary and two Directors at the instance and on the approval of the Board of Directors of the company. After the balance-sheet is audited, section 216 requires that the Auditors report should be attached to the balance-sheet, and section 217 requires the Board of Directors also to make a report. The balance-sheet together with the Auditors report and the Boards report are then required to be placed before the company at the annual general meeting for adoption of the balance-sheet. After the balance- sheet has been so laid before the company at the annual general meeting, section 220 requires that three copies of the balance-sheet should be filed with the Registrar. In the present case, the balance-sheet (Schedule D to Annexure J) was signed by the Secretary and two Directors, and Annexure J contains the Auditors report and the Boards report. It was stated in the judgment of the learned single Judge that the balance-sheet was adopted by the company and the same was not disputed before us. It is thus quite clear that the balance- sheet was signed by duly authorised agents of the company.27. In CIT-III v. Shri Vardhman Overseas Ltd., 2011 SCC OnLine Del 5599 : (2012) 343 ITR 408 , the Delhi High Court held:17. In the case before us, as rightly pointed out by the Tribunal, the assessee has not transferred the said amount from the creditors account to its profit and loss account. The liability was shown in the balance sheet as on 31st March, 2002. The assessee being a limited company, this amounted to acknowledging the debts in favour of the creditors. Section 18 of the Limitation Act, 1963 provides for effect of acknowledgement in writing. It says where before the expiration of the prescribed period for a suit in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall commence from the time when the acknowledgement was so signed. In an early case, in England, in Jones v. Bellgrove Properties, (1949) 2KB 700, it was held that a statement in a balance sheet of a company presented to a creditor-share holder of the company and duly signed by the directors constitutes an acknowledgement of the debt. In Mahabir Cold Storage v. CIT (1991) 188 ITR 91 : 1991 Supp (1) SCC 402, the Supreme Court held:The entries in the books of accounts of the appellant would amount to an acknowledgement of the liability to Messrs. Prayagchand Hanumanmal within the meaning of Section 18 of the Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt.In several judgments of this Court, this legal position has been accepted. In Daya Chand Uttam Prakash Jain v. Santosh Devi Sharma 67 (1997) DLT 13 , S.N. Kapoor J. applied the principle in a case where the primary question was whether a suit under Order 37 CPC could be filed on the basis of an acknowledgement. In Larsen & Toubro Ltd. v. Commercial Electric Works 67 (1997) DLT 387 a Single Judge of this Court observed that it is well settled that a balance sheet of a company, where the defendants had shown a particular amount as due to the plaintiff, would constitute an acknowledgement within the meaning of Section 18 of the Limitation Act. In Rishi Pal Gupta v. S.J. Knitting & Finishing Mills Pvt. Ltd. 73 (1998) DLT 593 , the same view was taken. The last two decisions were cited by Geeta Mittal, J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd. (decided on 30/4/2007) and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of the Limitation Act. In Ambika Mills Ltd. Ahmedabad v. CIT Gujarat (1964) 54 ITR 167 , it was further held that a debt shown in a balance sheet of a company amounts to an acknowledgement for the purpose of Section 19 of the Limitation Act and in order to be so, the balance sheet in which such acknowledgement is made need not be addressed to the creditors. In light of these authorities, it must be held that in the present case, the disclosure by the assessee company in its balance sheet as on 31st March, 2002 of the accounts of the sundry creditors amounts to an acknowledgement of the debts in their favour for the purposes of Section 18 of the Limitation Act. The assessees liability to the creditors, thus, subsisted and did not cease nor was it remitted by the creditors. The liability was enforceable in a court of law.28. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd., 2013 SCC OnLine Del 2535 : (2013) 202 DLT 735, the Delhi High Court held:7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd. 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held:5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:—7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed.33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020.34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also.35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34.6. There can be no doubt whatsoever that the appellant has been completely remiss and deficient in pleading acknowledgement of liability on the facts of this case. However, given the staggering amount allegedly due from the respondents, we afford one further opportunity to the appellant to amend its pleadings so as to incorporate what is stated in the written submissions filed by it before the NCLAT, subject to costs of Rs.1,00,000/- to be paid by the appellant to the respondents within a period of four weeks from today.2. Suffice it to say that the basis of the Section 7 application in this case was a DRT decree dated 17.08.2018, pursuant to which a recovery certificate dated 19.06.2019 was issued. The Section 7 application averred that the date of the DRT decree furnished the cause of action and, thus, was the starting point of limitation in this case.4. There can be no doubt that the NCLT had, in its order dated 19.08.2019, stated that Article 63(a) of the Limitation Act would apply instead of Article 137, contrary to what has been held by us in several judgments. It cannot, therefore, be said that the Calcutta High Court wrongly exercised jurisdiction in setting aside this finding. However, the High Court then went on to refer to certain balance sheets that had been produced, thereby extending limitation under Section 18 of the Limitation Act, but held that given the judgment in Babulal (supra), such balance sheets could not extend limitation. | 1 | 17,815 | 8,506 | ### Instruction:
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11337 : (2017) 4 KLJ 80 , the Kerala High Court held: 7. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirement of law for a valid acknowledgement under Section 18 of the Act. We may recapitulate the words of Mr. Justice P. Subramonian Poti in Krishnan Assari v. Akilakerala Viswakarma Maha Sabha [1980 KLT 515 (DB)] and the following is the extract: 10. How far the balance sheets could be acted upon in deciding the claim of the appellant is the next question. The appellant relies on the balance sheets as acknowledgement of liability contemplated in S. 18 of the Limitation Act, 1963. Under S. 18 an acknowledgement of liability signed by the party against whom the right is claimed gives rise to a fresh period of limitation. Under Explanation (b) to the Section the word signed means signed either personally or by an agent duly authorised. A company being a corporate body acts through its representatives, the Managing Director and the Board of Directors. Under S. 210 of the Companies Act it is the statutory duty of the Board of Directors to lay before the Company at every annual general body meeting a balance sheet and a profit and loss account for the preceding financial year. S. 211 directs that the form and contents of the balance sheet should be as set out in Part I of Schedule VI. The said form stipulates for the details of the loans and advances and also of sundry creditors. The balance sheet should be approved by the Board of Directors, and thereafter authenticated by the Manager or the Secretary if any and not less than two directors one of whom should be the Managing Director. (See S. 215). The Act also provides for supply of copies of the balance sheet to the members before the company in general meeting. Going by the above provisions, a balance sheet is the statement of assets and liabilities of the company as at the end of the financial year, approved by the Board of Directors and authenticated in the manner provided by law. The persons who authenticate the document do so in their capacity as agents of the company. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirements of law for a valid acknowledgement under S. 18 of the Limitation Act, even though the directors by authenticating the balance sheet merely discharge a statutory duty and may not have intended to make an acknowledgement. 31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held: 5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:— 7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point. 6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed. 32. In Agni Aviation Consultants v. State of Telangana, 2020 SCC OnLine TS 1462 : (2020) 5 ALD 561, the High Court of Telangana held: 107. In several cases, various High Courts have held that an acknowledgement of liability in the balance sheet by a Company registered under the Companies Act, 1956 extends the period of limitation though it is not addressed to the creditor specifically. (Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, Bhajan Singh Samra v. Wimpy International Ltd., 2012 SCC OnLine Del 2939, Vijay Kumar Machinery and Electrical Stores v. Alaparthi Lakshmi Kanthamma, (1969) 74 ITR 224 (AP) , and Bengal Silk Mills Company, Raja of Vizianagram v. Official Liquidator, Vizianagram Mining Company Limited, AIR 1952 Mad 1361). 108. Therefore it is not necessary that the acknowledgement of liability must be contained in a document addressed to the creditor i.e. the petitioners in the instant case. 33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020. 34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also. 35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34.
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Mills Pvt. Ltd. 73 (1998) DLT 593 , the same view was taken. The last two decisions were cited by Geeta Mittal, J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd. (decided on 30/4/2007) and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of the Limitation Act. In Ambika Mills Ltd. Ahmedabad v. CIT Gujarat (1964) 54 ITR 167 , it was further held that a debt shown in a balance sheet of a company amounts to an acknowledgement for the purpose of Section 19 of the Limitation Act and in order to be so, the balance sheet in which such acknowledgement is made need not be addressed to the creditors. In light of these authorities, it must be held that in the present case, the disclosure by the assessee company in its balance sheet as on 31st March, 2002 of the accounts of the sundry creditors amounts to an acknowledgement of the debts in their favour for the purposes of Section 18 of the Limitation Act. The assessees liability to the creditors, thus, subsisted and did not cease nor was it remitted by the creditors. The liability was enforceable in a court of law.28. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd., 2013 SCC OnLine Del 2535 : (2013) 202 DLT 735, the Delhi High Court held:7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd. 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held:5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:—7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed.33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020.34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also.35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34.6. There can be no doubt whatsoever that the appellant has been completely remiss and deficient in pleading acknowledgement of liability on the facts of this case. However, given the staggering amount allegedly due from the respondents, we afford one further opportunity to the appellant to amend its pleadings so as to incorporate what is stated in the written submissions filed by it before the NCLAT, subject to costs of Rs.1,00,000/- to be paid by the appellant to the respondents within a period of four weeks from today.2. Suffice it to say that the basis of the Section 7 application in this case was a DRT decree dated 17.08.2018, pursuant to which a recovery certificate dated 19.06.2019 was issued. The Section 7 application averred that the date of the DRT decree furnished the cause of action and, thus, was the starting point of limitation in this case.4. There can be no doubt that the NCLT had, in its order dated 19.08.2019, stated that Article 63(a) of the Limitation Act would apply instead of Article 137, contrary to what has been held by us in several judgments. It cannot, therefore, be said that the Calcutta High Court wrongly exercised jurisdiction in setting aside this finding. However, the High Court then went on to refer to certain balance sheets that had been produced, thereby extending limitation under Section 18 of the Limitation Act, but held that given the judgment in Babulal (supra), such balance sheets could not extend limitation.
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SARV JAN KALYAN SEWA SAMITI Vs. UNION OF INDIA | the order of the National Green Tribunal dated 5 December 2018:“Since the proceedings are still pending before the National Green Tribunal, it is not necessary for this Court to entertain the civil appeal at this stage. The earlier order dated 30 October 2018 and the subsequent order dated 5 December 2018 (the latter is impugned in the present appeal) are interlocutory. Any decision by the Ministry of Environment, Forests and Climate Change, Government of India and by the Forest Department of the Government of Haryana must be in accordance with law.Since the OA is still pending before the Tribunal, this shall not come in the way of the appellant pursuing its remedies in the pending proceedings.The appeal is accordingly disposed of. No costs.”3. On 5 December 2018, the NGT had, while adverting to its earlier order dated 30 October 2018, reiterated that the fourth respondent herein may submit a proposal to the Ministry of Environment, Forests and Climate Change and to the State Government. The proposal was to be considered by the State of Haryana and by the MOEF&CC.4. When the earlier Civil Appeal came up before this Court on 8 February 2019, as the order indicates, it was disposed of since the direction contained in the order dated 5 December 2018 was interlocutory in nature. However, this Court observed that:(i) Any decision by the MOEF&CC and by the Forest Department of the Government of Haryana must be in accordance with law;(ii) Since the Original Application was still pending before the NGT, this shall not come in the way of the appellant pursuing its remedies in the pending proceedings.5. Following the order passed by this Court, a two-Judge Bench of the NGT passed the following order on 11 February 2019:“At the outset, we have been informed that the order dated on 05.12.2018 was challenged by the applicant before the Hon’ble Supreme Court. However, the said civil appeal has been decided without any interference by the Hon’ble Court. Therefore, the steps to be taken in furtherance of the proposal given on 05.12.2018 should be expedited. The State of Haryana, before which the proposal is pending for consideration, to decide the same within two weeks from today. Thereafter, the matter be sent to Regional Officer, MoEF at Chandigarh who shall consider and decide within two weeks from date of receipt of the proposal from State of Haryana. Accordingly, Original Application No.124 of 2017 stands disposed of, with no order as to cost.M.A. No.208 of 2017 This application does not survive for consideration as the main appeal itself stands dismissed.M.A. No.208 of 2017 stands disposed of accordingly.”6. The above order dated 11 February 2019 is the subject matter of the present Civil Appeal.7. On behalf of the appellant, it has been submitted that as a result of the impugned order of the NGT, the appellant has been completely shut out from seeking redress in the proceedings which were pending before the NGT. It has been urged that the clear intendment of the order of this Court was that all objections which the appellant has in regard to the proposal for the exchange of land with forest land alleged to have been encroached upon would have to be considered by the NGT. The NGT has obviated that process by simply disposing of the OA without considering the objections.8. On the other hand, Mr. C.U. Singh, learned senior counsel appearing on behalf of the fourth respondent, submits that the fourth respondent has already taken steps to dismantle and shift the wall and the impugned order of the NGT was in furtherance of the earlier directions which have already been issued on 30 October 2018 and 5 December 2018. Moreover, it has been submitted that the Court may at best delete the last sentence of the order of the NGT by which the OA has been disposed of so that the OA may be restored to file for consideration of such objections as the appellant may have. Alternatively, it has been submitted that the appellant may be left at liberty to pursue its remedies once a final decision has been arrived at by the State of Haryana and by the MOEF&CC.9. At the outset, it is necessary to observe that the order of this Court dated 8 February 2019 indicates that the reason why the Court did not interfere, at that stage, with the order dated 5 December 2018 was because it was of an interlocutory nature. At the same time, this Court observed that any decision by the MOEF&CC as well as by the State Government would have to be in accordance with law. More significantly, since the OA was pending, this Court observed that this shall not come in the way of the appellant pursuing its remedies in the pending proceedings. We find from the impugned order of the NGT dated 11 February 2019 that it proceeded on the basis of what it was informed as the crux of the order of this Court. Had the NGT awaited a copy of the order of this Court, it would have been in a position to appreciate the contents of the order which was passed on 8 February 2019. The consequence of the impugned order is to effectively shut out the appellant from addressing its objections to the proposed exchange before the NGT. In our view, this course of action, which has been followed by the NGT, is indefensible. The NGT ought to have, in deference to the order passed by this Court, allowed the process which had been initiated before the State and MOEF&CC to continue, but to permit the appellant in the pending proceedings to address its objections in accordance with law.10. We are, therefore, unimpressed with the submissions which have been urged on behalf of the fourth respondent and, for that matter, on behalf of the State of Haryana. The NGT was duty bound to follow the order of this Court and we are constrained to observe that this has not been done. | 1[ds]9. At the outset, it is necessary to observe that the order of this Court dated 8 February 2019 indicates that the reason why the Court did not interfere, at that stage, with the order dated 5 December 2018 was because it was of an interlocutory nature. At the same time, this Court observed that any decision by the MOEF&CC as well as by the State Government would have to be in accordance with law. More significantly, since the OA was pending, this Court observed that this shall not come in the way of the appellant pursuing its remedies in the pending proceedings. We find from the impugned order of the NGT dated 11 February 2019 that it proceeded on the basis of what it was informed as the crux of the order of this Court. Had the NGT awaited a copy of the order of this Court, it would have been in a position to appreciate the contents of the order which was passed on 8 February 2019. The consequence of the impugned order is to effectively shut out the appellant from addressing its objections to the proposed exchange before the NGT. In our view, this course of action, which has been followed by the NGT, is indefensible. The NGT ought to have, in deference to the order passed by this Court, allowed the process which had been initiated before the State and MOEF&CC to continue, but to permit the appellant in the pending proceedings to address its objections in accordance with law.10. We are, therefore, unimpressed with the submissions which have been urged on behalf of the fourth respondent and, for that matter, on behalf of the State of Haryana. The NGT was duty bound to follow the order of this Court and we are constrained to observe that this has not been done. | 1 | 1,144 | 342 | ### Instruction:
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the order of the National Green Tribunal dated 5 December 2018:“Since the proceedings are still pending before the National Green Tribunal, it is not necessary for this Court to entertain the civil appeal at this stage. The earlier order dated 30 October 2018 and the subsequent order dated 5 December 2018 (the latter is impugned in the present appeal) are interlocutory. Any decision by the Ministry of Environment, Forests and Climate Change, Government of India and by the Forest Department of the Government of Haryana must be in accordance with law.Since the OA is still pending before the Tribunal, this shall not come in the way of the appellant pursuing its remedies in the pending proceedings.The appeal is accordingly disposed of. No costs.”3. On 5 December 2018, the NGT had, while adverting to its earlier order dated 30 October 2018, reiterated that the fourth respondent herein may submit a proposal to the Ministry of Environment, Forests and Climate Change and to the State Government. The proposal was to be considered by the State of Haryana and by the MOEF&CC.4. When the earlier Civil Appeal came up before this Court on 8 February 2019, as the order indicates, it was disposed of since the direction contained in the order dated 5 December 2018 was interlocutory in nature. However, this Court observed that:(i) Any decision by the MOEF&CC and by the Forest Department of the Government of Haryana must be in accordance with law;(ii) Since the Original Application was still pending before the NGT, this shall not come in the way of the appellant pursuing its remedies in the pending proceedings.5. Following the order passed by this Court, a two-Judge Bench of the NGT passed the following order on 11 February 2019:“At the outset, we have been informed that the order dated on 05.12.2018 was challenged by the applicant before the Hon’ble Supreme Court. However, the said civil appeal has been decided without any interference by the Hon’ble Court. Therefore, the steps to be taken in furtherance of the proposal given on 05.12.2018 should be expedited. The State of Haryana, before which the proposal is pending for consideration, to decide the same within two weeks from today. Thereafter, the matter be sent to Regional Officer, MoEF at Chandigarh who shall consider and decide within two weeks from date of receipt of the proposal from State of Haryana. Accordingly, Original Application No.124 of 2017 stands disposed of, with no order as to cost.M.A. No.208 of 2017 This application does not survive for consideration as the main appeal itself stands dismissed.M.A. No.208 of 2017 stands disposed of accordingly.”6. The above order dated 11 February 2019 is the subject matter of the present Civil Appeal.7. On behalf of the appellant, it has been submitted that as a result of the impugned order of the NGT, the appellant has been completely shut out from seeking redress in the proceedings which were pending before the NGT. It has been urged that the clear intendment of the order of this Court was that all objections which the appellant has in regard to the proposal for the exchange of land with forest land alleged to have been encroached upon would have to be considered by the NGT. The NGT has obviated that process by simply disposing of the OA without considering the objections.8. On the other hand, Mr. C.U. Singh, learned senior counsel appearing on behalf of the fourth respondent, submits that the fourth respondent has already taken steps to dismantle and shift the wall and the impugned order of the NGT was in furtherance of the earlier directions which have already been issued on 30 October 2018 and 5 December 2018. Moreover, it has been submitted that the Court may at best delete the last sentence of the order of the NGT by which the OA has been disposed of so that the OA may be restored to file for consideration of such objections as the appellant may have. Alternatively, it has been submitted that the appellant may be left at liberty to pursue its remedies once a final decision has been arrived at by the State of Haryana and by the MOEF&CC.9. At the outset, it is necessary to observe that the order of this Court dated 8 February 2019 indicates that the reason why the Court did not interfere, at that stage, with the order dated 5 December 2018 was because it was of an interlocutory nature. At the same time, this Court observed that any decision by the MOEF&CC as well as by the State Government would have to be in accordance with law. More significantly, since the OA was pending, this Court observed that this shall not come in the way of the appellant pursuing its remedies in the pending proceedings. We find from the impugned order of the NGT dated 11 February 2019 that it proceeded on the basis of what it was informed as the crux of the order of this Court. Had the NGT awaited a copy of the order of this Court, it would have been in a position to appreciate the contents of the order which was passed on 8 February 2019. The consequence of the impugned order is to effectively shut out the appellant from addressing its objections to the proposed exchange before the NGT. In our view, this course of action, which has been followed by the NGT, is indefensible. The NGT ought to have, in deference to the order passed by this Court, allowed the process which had been initiated before the State and MOEF&CC to continue, but to permit the appellant in the pending proceedings to address its objections in accordance with law.10. We are, therefore, unimpressed with the submissions which have been urged on behalf of the fourth respondent and, for that matter, on behalf of the State of Haryana. The NGT was duty bound to follow the order of this Court and we are constrained to observe that this has not been done.
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9. At the outset, it is necessary to observe that the order of this Court dated 8 February 2019 indicates that the reason why the Court did not interfere, at that stage, with the order dated 5 December 2018 was because it was of an interlocutory nature. At the same time, this Court observed that any decision by the MOEF&CC as well as by the State Government would have to be in accordance with law. More significantly, since the OA was pending, this Court observed that this shall not come in the way of the appellant pursuing its remedies in the pending proceedings. We find from the impugned order of the NGT dated 11 February 2019 that it proceeded on the basis of what it was informed as the crux of the order of this Court. Had the NGT awaited a copy of the order of this Court, it would have been in a position to appreciate the contents of the order which was passed on 8 February 2019. The consequence of the impugned order is to effectively shut out the appellant from addressing its objections to the proposed exchange before the NGT. In our view, this course of action, which has been followed by the NGT, is indefensible. The NGT ought to have, in deference to the order passed by this Court, allowed the process which had been initiated before the State and MOEF&CC to continue, but to permit the appellant in the pending proceedings to address its objections in accordance with law.10. We are, therefore, unimpressed with the submissions which have been urged on behalf of the fourth respondent and, for that matter, on behalf of the State of Haryana. The NGT was duty bound to follow the order of this Court and we are constrained to observe that this has not been done.
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SALEM MUNICIPALITY Vs. P. KUMAR & ORS | obtain any ryotwari patta or for obtaining decree in the suit.47. It was urged before us on behalf of the appellant that suit was barred by limitation by virtue of provisions contained in Article 58 of the Limitation Act 1963. The suit was required to be filed within three years. We need not go into the question. We have found on merits that absolutely no case is made out in favour of the plaintiff. Thus, he was not at all entitled for any relief.48. The High Court has considered another aspect of the difference in area, it has opined that earlier it appeared that land was 15.00 acres only later on how the area was increased to 24.62 acres has not been explained by the defendants. The aforesaid reasoning recorded by the High Court is totally based upon the ignorance of the material aspects and evidence, as a matter of fact earlier dispute land was comprised in survey no. 779 and which corresponding to new s.no. 163 in 24.67 acres, said area has been continuously recorded in the revenue papers and register of settlement, right from the beginning. After 1948 till 1995, no cogent document indicating the disparity in the area has been filed by the plaintiff. Even assuming that the finding recorded by the High Court is correct, it passes comprehension how that helps the case of the plaintiff. Plaintiff has to succeed only on the strength of his case and when temporary leases had been granted to his vendor within the area of tank as mentioned in the lease deeds which was reserved for the common use, no right could have accrued. The High Court has ignored and overlooked this material aspect. In case, the area has increased from 15 acres to 24.62 acres and has not been explained how the plaintiff can claim any right in the land which formed part of water body is not understandable as the case of the plaintiff is not at all or buttressed by the aforesaid discrepancy even if it exists. Moreover, the entire area of 24.63 acres has been recorded as Chinneri (tank) and poramboke i.e., for common use.49. Now, we deal with last ground raised by learned senior counsel on behalf of the plaintiff based on provisions contained in section 64 of the Act of 1948. Section 64 deals with the right of the owner, occupier not to be affected by temporary dispossession/discontinuance of possession. Section 64 is extracted hereunder:?Rights of owner or occupier not to be effected by temporary discontinuance of possession or occupation:64. Where a person-(a) is entitled to the ownership of to the possession or occupation of any land or building immediately before the notified date, but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived or his right to the occupation thereof; and(b) has not on that date lost his right to recover the possession or occupation of such land or building;He shall, for the purposes of this Act, and subject to the provisions thereof be deemed to be the owner, or to be in possession or occupation, of such land or building;Provided that any lawful transferee of the right to the title to such land of building shall be entitled to all the rights this Act of his transferor. 50. Section 64 pre-supposes that a person is entitled to ownership or possession or occupancy of any land immediately before the notified date. In case of temporary dispossession or deprivation of his right to occupation hereafter and he has not lost the right to recover the possession of such a land or building shall for the purpose of the Act be deemed to be the owner or to be in possession or occupation of such land or building.51. There cannot be any dispute with respect to legal provisions in Section 64 of the Act of 1948. It is settled proposition of law that in case of wrongful dispossession or discontinuance of possession of owner, possession of person who has wrongfully taken it is deemed to be that of the true owner, but in the instant case, the provisions of Section 64 render no help to the plaintiff for the singular reason that his vendor is not proved to be the owner of the land nor has proved his occupation on the date of abolition or that it had been discontinued in illegal manner, no such right of vendor to remain in possession has been established. Plaintiff?s vendor was not having any right, title or interest after the lapse of temporary leases. Consequently, he did not possess any transferable right in the land. Hence, Pachiappan did not derive any right, title or interest from his predecessor in the land as he had none. Plaintiff was required to prove derivative title in which he has miserably failed. It was mentioned in recital in the sale deed by his vendor that he was not able to possess land nor could cultivate it. Apparently, the vendor of the plaintiff was not in occupation of land. Moreover, possession had been taken in 1951 of entire estate by the State Government as apparent from the Gazette notification, the land of the entire village stood vested in the State.52. The State Government has handed over the land to Salem Municipality and a major part of it has been given to the Anna Transport Corporation for the purpose of the bus stand. The High Court has observed why entire land was not given to Transport Corporation by Municipality and consequently inferred in favour of the plaintiff, only part of the land has been given could not have been made the basis by the High Court to derive a conclusion in favour of the plaintiff so as to buttress the title. The High Court has gravely erred in recording such an inferential finding. There was no scope to arrive at the same. The approach employed by the High Court is wholly impermissible, unsustainable, perverse and illegal. | 0[ds]It is apparent from the lease deed placed on record by the plaintiff (Exh. A-2) dated 15.11.1940 that the land formed part of the Chinneri Tank Bund Side -Waste dry Chinneri Tank Bed Upper-dry Chinneri Tank Bund Side -Waste dry Chinneri Tank Bed Upper-dry and the lease was granted in Fasli 1350 corresponding to Gregorian calendar year of 1940 w.e.f. the month of November 1940 to June 1941. Similar other leases collectively marked A-2 are dated 19.11.1942, 1943 and 1946 w.e.f. the month of November to June. The leases were granted in the exercise of the powers under Section 51 of the Act of 1908. It is apparent from the leases that area in question is specifically depicted in the aforesaid lease deeds to form part of the tank25. Besides that, there are a plethora of revenue entries placed on record indicating that the entire area 24.62 acres had been recorded as tank continuously right from 1950 till 199526. The lease had been granted for eight months in the year 1940. The grant of lease for the aforesaid period excluding rainy season from July to October and evidence indicates that land formed part of the tank. Thus, we have no hesitation in rejecting the submission to the contrary raised on behalf of the plaintiffrespondent to the effect that land did not form part of the tank28. It is apparent from the definition of ‘ryot? as defined under Section 3(15), means a person who holds the land for the purpose of agriculture. It is necessary for such a ‘ryot? to hold ‘ryoti Land? in an estate. Ryoti land has been defined in Section 3(16) as cultivable land in an estate other than private land but does not include beds and bunds of tanks and of supply, drainage, surplus or irrigation channels. Thus, as the area in question formed part of the tank was clearly not ryoti land as per the said definition in Section 3(16). As such, the predecessor in interest - S.Vijayaranga Mudaliar or plaintiff could not be said to be ‘ryot? holding ‘ryoti? land32. It is apparent that under Section 3 of the Act of 1948 vesting is automatic by virtue of the statutory provisions and government is empowered to take possession as provided under Section 3 (a) only saving in the proviso to section 3(d) is that in case any person is prima facie entitled to ryotwari patta and during pendency of his application, for the settlement, was not to be dispossessed. In the case of the landholder, it is provided that if the decision is pending before the Settlement Officer and the Tribunal on appeal, the State before taking possession has to prima facie consider whether landholder is entitled to ryot patta. Another consequence of vesting as clearly provided in Section 3(f) of Act of 1948 is that the relationship between the landholder and Ryot shall stand extinguished39. It is apparent from the conjoint reading of the provisions contained in Sections 3(15) and 3 (16) of the Act of 1908 and the provisions contained in Section 3, 11 and 14-A of the Act of 1948 that the land of the tank is not ‘ryoti land? as such no rights of ‘ryot? could accrue in the person by holding the land on temporary arrangement of lease granted for 8 months in a year when water was not there in the tanks. Such bodies are protected by virtue of the aforesaid provisions carved out under the Acts of 1908 and 1948. The amendment made in 1974 in Section 14-A makes it clear that even if any ryot patta has been granted to any incumbent even with respect to private tank or ooranies that shall be inoperative and stand cancelled40. In the instant case, it is apparent that not only S.Vijayaranga Mudaliar the vendor of plaintiff had applied for a grant of patta under the provisions of Section 11 of the Act of 1948, but the same very prayer had been unsuccessfully made four times by the original plaintiff. All such prayers made in 1953, 1968, 1971, 1982 and 1994 had been rejected. It is not in dispute that ryotwari patta had not been granted. In the order passed rejecting review in 1973, there is categorical finding that land is comprised in the tank and area was liable for submergence and formed part of the irrigation tank. Once the claim of the original plaintiff had been rejected, it was incumbent upon him to file a suit for establishing his rights, if any. He could not have waited till 1984, after initial rejection of the prayer in 1953. Again, could not have waited till December 1984 after the rejection order was passed in 1968 and again on 11.5.1971 and review had been dismissed on 7.5.1973. In the absence of grant of ryotwari patta and even otherwise in view of the fact that land formed part of tank reserved for common use, no right accrued to the plaintiff to claim ryotwari patta as his predecessor was not ‘ryot? and the disputed land was not ‘ryoti Land?. Apart from that, vendor of the plaintiff did not hold land for 12 continuous years, as such no right, title or interest accrued to the vendor of the plaintiff or to the plaintiff. The Trial Court, as well as the High Court, have committed patent illegality in ignoring the aforesaid prohibition contained in the provisions of the Act of 1908 as well as of the Act of 194841. Coming to the question of possession, the High Court has discarded B-9 proceedings taking possession on 12.1.1951. Though, there was absolutely nothing to doubt factum of taking over the possession. It is also apparent that the land formed part of tank which used to go in submergence during the rains from the month of July to October, it was not capable of being possessed continuously. No patta was granted to the vendor of the plaintiff for a complete year at any point of time, it was from November to June. The four lease deeds for the period of four years are for 32 months i.e. 8 months each year, have been placed on record of 1940, 1942, 1943 and 1946, no other lease has been produced indicating that he was holding land for 12 years or any lease of the land as on the date when the Act of 1948 came into force or on the appointed day. Even the vendor was not in possession of the land as the entire estate of the village stood vested in the state, as per the notification issued on 12.1.1951, possession had been taken. Thus, there was absolutely nothing to hold that possession continued with the vendor of the plaintiff. After the purchase was made by Pachiappan in 1952 there is not even single revenue entry placed on record indicating that he ever remained in possession at any point of time or cultivated the land. On the other hand, various documents to the contrary have been placed on record by the appellant42. Firstly, there are copies of settlement register indicating the land comprised in new survey No. 163 corresponds to 779 old and same is recorded as Poramboke (common land) for common use. Entire area 24.62 acre had been recorded as Poramboke. There is yet another settlement entry of 1959 which records that Survey No.163 had been carved out of 779 in an area 24.62 acre and area has been recorded as Achuveri i.e., lake and also Porampoke i.e., for the common use. The document records the fact that Pachiappan?s application for grant of ryotwari patta has been rejected on 5.11.1968. Survey Map of the village also records that the old survey number 779 has vested in the State. When we consider Exh B-13, Fasli 1379 = 1969 year (Gregorian) the land has been recorded as Chinneri (small lake). In the remarks column possession of several persons is recorded as a trespasser, but not that of the plaintiff - Pachiappan. Similar is the position in the entry of various Fasli 1380 = 1970, 1381 = 1971, 1382 = 1972, 1383 = 1973, 1384 = 1974, 1386 = 1976, 1390 = 1980, 1391 = 1981 till 1405 = 1995. The entries in remarks column shows neither ownership nor tenancy as observed by this Court in Beohar Rajendra Singh v. State of M.P. and others,1970 RN 16 (Supreme Court)43. Other documents are also placed on record indicating that area is Chinneri (lake) of common use. Thus, there was absolutely no material or ground available to the High Court to set aside the finding of possession recorded by the First Appellate Court and for discarding the B-9 of taking possession in 1951 as that was supported by corresponding revenue entries and statutory presumption of correctness is attached to such entries though such presumption is rebuttable. However, there is absolutely no evidence adduced on record by the plaintiff to rebut the statutory presumption of correctness of document of record of rights. Thus, trial court, as well as the High Court, has acted in a perverse manner in discarding the overwhelming evidence merely on the ground that document A-1 to A-4 stands proved. The High Court could not have inferred in favour of the plaintiff, as no right accrued to the plaintiff or to his predecessor-in-interest on the basis of the aforesaid document A-1 to A-4. The High Court has unnecessarily drawn adverse inference just in order to give a finding of the genuineness of the document A-1 to A-4. We take these documents as proved and proceed to deal with the case on that basis44. When we consider the documents A1 to A-4, taken as proved, not only they fail to advance the cause espoused by the plaintiff but rather negates it. Ex.A-2 are the 4 pattas placed on record by the plaintiff granted in favour of S.Vijayaranga Mudaliar as predecessor interest of 1940, 1942, 1943 and 1946. The lease deed itself records that land was comprised in the tank and formed part of the tank. Thus, no right or title or interest could have accrued to the plaintiff over the said land.45. Apart from that, when we consider sale deed A-1, executed by S.Vijayaranga Mudaliar in favour of original plaintiff Pachiappa, the recital in the sale deed is that though patta was granted in his name he could neither cultivate nor able to look after the same, as such, he has decided to sell the land. In Exh.A-3 rent register of Fasli 1369 = 1959. It only records the rent not the factum of lease or possession or cultivation by S.Vijayaranga Mudaliar. A-4 is document of the year 1949 that records the name of S.Vijayaranga Mudaliar but in that, no cultivation is recorded of S.Vijayaranga Mudaliar. It records only how much was the cess of land. No case is made out in favour of vendor of the plaintiff on the basis of the entry of amount of land cess or land revenue of the year 1949. Merely recording the cess or revenue in the year 1949 or even assuming it was paid by the vendor in 1949, is not going to confer title in favour of vendor, particularly when the area was comprised in the tank. In case any lease had been granted for the period of 1947 to 1949 ought to have been placed on record but no such lease deeds except for four years have been placed on record. Thus, the finding recorded by the High Court as to possession is clearly perverse and contrary to the revenue records and the Gazette notification of vesting of land in State issued in 195146. It is no doubt true that under Section 114 of the Evidence Act, there is a presumption of continuance of a state of affairs once shown to have prevailed. It is open to the court under Section 114 to presume the continuity of any fact once shown to have prevailed. Such presumption of continuity can be drawn not only forward but backward also. Court can presume that such state of affairs might have existed in past also unless discontinuity is proved. In the instant case, it is not shown by any affirmative evidence on record in the form of revenue record that the plaintiff?s vendor was in possession on the date of abolition and thereafter plaintiff remained in possession at any point of time. This Court has observed in Sir Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Ors., AIR 1973 SC 1299 that by stray entry no such presumption arises. On the other hand, the successive five attempts made by the plaintiff and his vendor failed to obtain ryotwari patta as no right in such land existed neither accrued. The plaintiff due to failure to obtain ryotwari patta and even otherwise as land formed part of tank has failed to prove entitlement to be treated as Ryot. No right, title or interest has accrued to the plaintiff to obtain any ryotwari patta or for obtaining decree in the suitWe need not go into the question. We have found on merits that absolutely no case is made out in favour of the plaintiff. Thus, he was not at all entitled for any relief48. The High Court has considered another aspect of the difference in area, it has opined that earlier it appeared that land was 15.00 acres only later on how the area was increased to 24.62 acres has not been explained by the defendants. The aforesaid reasoning recorded by the High Court is totally based upon the ignorance of the material aspects and evidence, as a matter of fact earlier dispute land was comprised in survey no. 779 and which corresponding to new s.no. 163 in 24.67 acres, said area has been continuously recorded in the revenue papers and register of settlement, right from the beginning. After 1948 till 1995, no cogent document indicating the disparity in the area has been filed by the plaintiff. Even assuming that the finding recorded by the High Court is correct, it passes comprehension how that helps the case of the plaintiff. Plaintiff has to succeed only on the strength of his case and when temporary leases had been granted to his vendor within the area of tank as mentioned in the lease deeds which was reserved for the common use, no right could have accrued. The High Court has ignored and overlooked this material aspect. In case, the area has increased from 15 acres to 24.62 acres and has not been explained how the plaintiff can claim any right in the land which formed part of water body is not understandable as the case of the plaintiff is not at all or buttressed by the aforesaid discrepancy even if it exists. Moreover, the entire area of 24.63 acres has been recorded as Chinneri (tank) and poramboke i.e., for common use51. There cannot be any dispute with respect to legal provisions in Section 64 of the Act of 1948. It is settled proposition of law that in case of wrongful dispossession or discontinuance of possession of owner, possession of person who has wrongfully taken it is deemed to be that of the true owner, but in the instant case, the provisions of Section 64 render no help to the plaintiff for the singular reason that his vendor is not proved to be the owner of the land nor has proved his occupation on the date of abolition or that it had been discontinued in illegal manner, no such right of vendor to remain in possession has been established. Plaintiff?s vendor was not having any right, title or interest after the lapse of temporary leases. Consequently, he did not possess any transferable right in the land. Hence, Pachiappan did not derive any right, title or interest from his predecessor in the land as he had none. Plaintiff was required to prove derivative title in which he has miserably failed. It was mentioned in recital in the sale deed by his vendor that he was not able to possess land nor could cultivate it. Apparently, the vendor of the plaintiff was not in occupation of land. Moreover, possession had been taken in 1951 of entire estate by the State Government as apparent from the Gazette notification, the land of the entire village stood vested in the State52. The State Government has handed over the land to Salem Municipality and a major part of it has been given to the Anna Transport Corporation for the purpose of the bus stand. The High Court has observed why entire land was not given to Transport Corporation by Municipality and consequently inferred in favour of the plaintiff, only part of the land has been given could not have been made the basis by the High Court to derive a conclusion in favour of the plaintiff so as to buttress the title. The High Court has gravely erred in recording such an inferential finding. There was no scope to arrive at the same. The approach employed by the High Court is wholly impermissible, unsustainable, perverse and illegal. | 0 | 7,427 | 3,125 | ### 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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obtain any ryotwari patta or for obtaining decree in the suit.47. It was urged before us on behalf of the appellant that suit was barred by limitation by virtue of provisions contained in Article 58 of the Limitation Act 1963. The suit was required to be filed within three years. We need not go into the question. We have found on merits that absolutely no case is made out in favour of the plaintiff. Thus, he was not at all entitled for any relief.48. The High Court has considered another aspect of the difference in area, it has opined that earlier it appeared that land was 15.00 acres only later on how the area was increased to 24.62 acres has not been explained by the defendants. The aforesaid reasoning recorded by the High Court is totally based upon the ignorance of the material aspects and evidence, as a matter of fact earlier dispute land was comprised in survey no. 779 and which corresponding to new s.no. 163 in 24.67 acres, said area has been continuously recorded in the revenue papers and register of settlement, right from the beginning. After 1948 till 1995, no cogent document indicating the disparity in the area has been filed by the plaintiff. Even assuming that the finding recorded by the High Court is correct, it passes comprehension how that helps the case of the plaintiff. Plaintiff has to succeed only on the strength of his case and when temporary leases had been granted to his vendor within the area of tank as mentioned in the lease deeds which was reserved for the common use, no right could have accrued. The High Court has ignored and overlooked this material aspect. In case, the area has increased from 15 acres to 24.62 acres and has not been explained how the plaintiff can claim any right in the land which formed part of water body is not understandable as the case of the plaintiff is not at all or buttressed by the aforesaid discrepancy even if it exists. Moreover, the entire area of 24.63 acres has been recorded as Chinneri (tank) and poramboke i.e., for common use.49. Now, we deal with last ground raised by learned senior counsel on behalf of the plaintiff based on provisions contained in section 64 of the Act of 1948. Section 64 deals with the right of the owner, occupier not to be affected by temporary dispossession/discontinuance of possession. Section 64 is extracted hereunder:?Rights of owner or occupier not to be effected by temporary discontinuance of possession or occupation:64. Where a person-(a) is entitled to the ownership of to the possession or occupation of any land or building immediately before the notified date, but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived or his right to the occupation thereof; and(b) has not on that date lost his right to recover the possession or occupation of such land or building;He shall, for the purposes of this Act, and subject to the provisions thereof be deemed to be the owner, or to be in possession or occupation, of such land or building;Provided that any lawful transferee of the right to the title to such land of building shall be entitled to all the rights this Act of his transferor. 50. Section 64 pre-supposes that a person is entitled to ownership or possession or occupancy of any land immediately before the notified date. In case of temporary dispossession or deprivation of his right to occupation hereafter and he has not lost the right to recover the possession of such a land or building shall for the purpose of the Act be deemed to be the owner or to be in possession or occupation of such land or building.51. There cannot be any dispute with respect to legal provisions in Section 64 of the Act of 1948. It is settled proposition of law that in case of wrongful dispossession or discontinuance of possession of owner, possession of person who has wrongfully taken it is deemed to be that of the true owner, but in the instant case, the provisions of Section 64 render no help to the plaintiff for the singular reason that his vendor is not proved to be the owner of the land nor has proved his occupation on the date of abolition or that it had been discontinued in illegal manner, no such right of vendor to remain in possession has been established. Plaintiff?s vendor was not having any right, title or interest after the lapse of temporary leases. Consequently, he did not possess any transferable right in the land. Hence, Pachiappan did not derive any right, title or interest from his predecessor in the land as he had none. Plaintiff was required to prove derivative title in which he has miserably failed. It was mentioned in recital in the sale deed by his vendor that he was not able to possess land nor could cultivate it. Apparently, the vendor of the plaintiff was not in occupation of land. Moreover, possession had been taken in 1951 of entire estate by the State Government as apparent from the Gazette notification, the land of the entire village stood vested in the State.52. The State Government has handed over the land to Salem Municipality and a major part of it has been given to the Anna Transport Corporation for the purpose of the bus stand. The High Court has observed why entire land was not given to Transport Corporation by Municipality and consequently inferred in favour of the plaintiff, only part of the land has been given could not have been made the basis by the High Court to derive a conclusion in favour of the plaintiff so as to buttress the title. The High Court has gravely erred in recording such an inferential finding. There was no scope to arrive at the same. The approach employed by the High Court is wholly impermissible, unsustainable, perverse and illegal.
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vendor in 1949, is not going to confer title in favour of vendor, particularly when the area was comprised in the tank. In case any lease had been granted for the period of 1947 to 1949 ought to have been placed on record but no such lease deeds except for four years have been placed on record. Thus, the finding recorded by the High Court as to possession is clearly perverse and contrary to the revenue records and the Gazette notification of vesting of land in State issued in 195146. It is no doubt true that under Section 114 of the Evidence Act, there is a presumption of continuance of a state of affairs once shown to have prevailed. It is open to the court under Section 114 to presume the continuity of any fact once shown to have prevailed. Such presumption of continuity can be drawn not only forward but backward also. Court can presume that such state of affairs might have existed in past also unless discontinuity is proved. In the instant case, it is not shown by any affirmative evidence on record in the form of revenue record that the plaintiff?s vendor was in possession on the date of abolition and thereafter plaintiff remained in possession at any point of time. This Court has observed in Sir Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Ors., AIR 1973 SC 1299 that by stray entry no such presumption arises. On the other hand, the successive five attempts made by the plaintiff and his vendor failed to obtain ryotwari patta as no right in such land existed neither accrued. The plaintiff due to failure to obtain ryotwari patta and even otherwise as land formed part of tank has failed to prove entitlement to be treated as Ryot. No right, title or interest has accrued to the plaintiff to obtain any ryotwari patta or for obtaining decree in the suitWe need not go into the question. We have found on merits that absolutely no case is made out in favour of the plaintiff. Thus, he was not at all entitled for any relief48. The High Court has considered another aspect of the difference in area, it has opined that earlier it appeared that land was 15.00 acres only later on how the area was increased to 24.62 acres has not been explained by the defendants. The aforesaid reasoning recorded by the High Court is totally based upon the ignorance of the material aspects and evidence, as a matter of fact earlier dispute land was comprised in survey no. 779 and which corresponding to new s.no. 163 in 24.67 acres, said area has been continuously recorded in the revenue papers and register of settlement, right from the beginning. After 1948 till 1995, no cogent document indicating the disparity in the area has been filed by the plaintiff. Even assuming that the finding recorded by the High Court is correct, it passes comprehension how that helps the case of the plaintiff. Plaintiff has to succeed only on the strength of his case and when temporary leases had been granted to his vendor within the area of tank as mentioned in the lease deeds which was reserved for the common use, no right could have accrued. The High Court has ignored and overlooked this material aspect. In case, the area has increased from 15 acres to 24.62 acres and has not been explained how the plaintiff can claim any right in the land which formed part of water body is not understandable as the case of the plaintiff is not at all or buttressed by the aforesaid discrepancy even if it exists. Moreover, the entire area of 24.63 acres has been recorded as Chinneri (tank) and poramboke i.e., for common use51. There cannot be any dispute with respect to legal provisions in Section 64 of the Act of 1948. It is settled proposition of law that in case of wrongful dispossession or discontinuance of possession of owner, possession of person who has wrongfully taken it is deemed to be that of the true owner, but in the instant case, the provisions of Section 64 render no help to the plaintiff for the singular reason that his vendor is not proved to be the owner of the land nor has proved his occupation on the date of abolition or that it had been discontinued in illegal manner, no such right of vendor to remain in possession has been established. Plaintiff?s vendor was not having any right, title or interest after the lapse of temporary leases. Consequently, he did not possess any transferable right in the land. Hence, Pachiappan did not derive any right, title or interest from his predecessor in the land as he had none. Plaintiff was required to prove derivative title in which he has miserably failed. It was mentioned in recital in the sale deed by his vendor that he was not able to possess land nor could cultivate it. Apparently, the vendor of the plaintiff was not in occupation of land. Moreover, possession had been taken in 1951 of entire estate by the State Government as apparent from the Gazette notification, the land of the entire village stood vested in the State52. The State Government has handed over the land to Salem Municipality and a major part of it has been given to the Anna Transport Corporation for the purpose of the bus stand. The High Court has observed why entire land was not given to Transport Corporation by Municipality and consequently inferred in favour of the plaintiff, only part of the land has been given could not have been made the basis by the High Court to derive a conclusion in favour of the plaintiff so as to buttress the title. The High Court has gravely erred in recording such an inferential finding. There was no scope to arrive at the same. The approach employed by the High Court is wholly impermissible, unsustainable, perverse and illegal.
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J.K. Lakshmi Cement Ltd Vs. Commercial Tax Officer, Pali | to the condition that the dealer making inter State sales in this notification would not be eligible to claim benefit of partial exemption under the notification dated 06.05.1986. The notification dated 12.03.1997 had remained in force upto 31st March, 1998. The circular dated 15.04.1994 in express words was not applicable to the notification dated 21.01.2000.24. It is limpid that the circular dated 15.04.1994, when in force, had referred to the notifications dated 07.03.1994 as well as 06.05.1986. Under the notification dated 07.03.1994, the rate of central tax on inter-State sale of cement was unconditionally fixed at 4%, even when there was no declaration in Form C and Form D. The notification dated 06.05.1986 relating to inter-State sale required Form C and Form D, for availing the benefit. The circular did not in clear and categorical terms lay down that dual or multiple benefits under the two notifications could be availed of by the same dealer. It, however, appears that both the assessee and the Revenue had understood the circular dated 15.04.1994 to mean that inter-State transactions would qualify and would be entitled to partial exemption under the notification dated 06.05.1986, when accompanied with Form C and D and for inter-State sale transactions without Form C and D, benefit of notification dated 07.03.1994 would apply.25. The understanding by the assessee and the Revenue, in the obtaining factual matrix, has its own limitation. It is because the principle of res judicata would have no application in spite of the understanding by the assessee and the Revenue, for the circular dated 15.04.1994, is not to the specific effect as suggested and, further notification dated 07.03.1994 was valid between 1st April, 1994 up to 31st March, 1997 (upto 31st March, 1997 vide notification dated 12.03.1997) and not thereafter. The Commercial Tax Department, by a circular, could have extended the benefit under a notification and, therefore, principle of estoppels would apply, though there are authorities which opine that a circular could not have altered and restricted the notification to the determent of the assessee. Circulars issued under tax enactments can tone down the rigour of law, for an authority which wields power for its own advantage is given right to forego advantage when required and considered necessary. This power to issue circulars is for just, proper and efficient management of the work and in public interest. It is a beneficial power for proper administration of fiscal law, so that undue hardship may not be caused. Circulars are binding on the authorities administering the enactment but cannot alter the provision of the enactment, etc. to the detriment of the assessee. Needless to emphasise that a circular should not be adverse and cause prejudice to the assessee. (See : UCO Bank, Calcutta v. Commissioner of Income Tax, West Bengal ((1999) 4 SCC 599 ).26. In Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries (2008) 13 SCC 1 ), it has been held that circulars and instructions issued by the Board are binding on the authorities under respective statute, but when this Court or High Court lays down a principle, it would be appropriate for the Court to direct that the circular should not be given effect to, for the circulars are not binding on the Court. In the case at hand, once circular dated 15.04.1994 stands withdrawn vide circular dated 16.04.2001, the appellant-assessee cannot claim the benefit of the withdrawn circular.27. The controversy herein centres round the period from 1st April, 2001 to 31st March, 2002. The period in question is mostly post the circular dated 16.04.2001. As we find, the appellant-assessee has pleaded to take benefit of the circular dated 15.04.1994, which stands withdrawn and was only applicable to the notification dated 07.03.1994. It was not specifically applicable to the notification dated 21.01.2000. The fact that the third paragraph of the notification dated 21.01.2000 is identically worded to the third paragraph of the notification dated 07.03.1994 but that would not by itself justify the applicability of circular dated 15.04.1994.28. In this context, we may note another contention that has been advanced before us. It is based upon the doctrine of contemporanea exposition. In our considered opinion, the said doctrine would not be applicable and cannot be pressed into service. Usage or practice developed under a statute is indicative of the meaning prescribed to its words by contemporary opinion. In case of an ancient statute, doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business. (See : G.P. Singh’s Principles of Statutory Interpretation, 13th Edition-2012 at page 344). It has been held in Rohitash Kumar and others v. Om Prakash Sharma and others (2013) 11 SCC 451 ) that the said doctrine has to be applied with caution and the Rule must give way when the language of the statute is plain and unambiguous. On a careful scrutiny of the language employed in paragraph 3 of the notification dated 21.01.2000, it is difficult to hold that the said notification is ambiguous or susceptible to two views of interpretations. The language being plain and clear, it does not admit of two different interpretations.29. In this regard, we may state that the circular dated 15.04.1994 was ambiguous and, therefore, as long as it was in operation and applicable possibly doctrine of contemporanea exposition could be taken aid of for its applicability. It is absolutely clear that the benefit and advantage was given under the circular and not under the notification dated 07.03.1994, which was lucid and couched in different terms. The circular having been withdrawn, the contention of contemporanea exposition does not commend acceptation and has to be repelled and we do so. We hold that it would certainly not apply to the notification dated 21.01.2000.30. In view of the aforesaid analysis, we | 0[ds]In our considered opinion, the said doctrine would not be applicable and cannot be pressed into service. Usage or practice developed under a statute is indicative of the meaning prescribed to its words by contemporary opinion. In case of an ancient statute, doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business.the said doctrine has to be applied with caution and the Rule must give way when the language of the statute is plain and unambiguous. On a careful scrutiny of the language employed in paragraph 3 of the notification dated 21.01.2000, it is difficult to hold that the said notification is ambiguous or susceptible to two views of interpretations. The language being plain and clear, it does not admit of two differentmay state that the circular dated 15.04.1994 was ambiguous and, therefore, as long as it was in operation and applicable possibly doctrine of contemporanea exposition could be taken aid of for its applicability. It is absolutely clear that the benefit and advantage was given under the circular and not under the notification dated 07.03.1994, which was lucid and couched in different terms. The circular having been withdrawn, the contention of contemporanea exposition does not commend acceptation and has to be repelled and we do so. We hold that it would certainly not apply to the notification datedour considered opinion, the said doctrine would not be applicable and cannot be pressed into service. Usage or practice developed under a statute is indicative of the meaning prescribed to its words by contemporary opinion. In case of an ancient statute, doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business. | 0 | 5,417 | 383 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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to the condition that the dealer making inter State sales in this notification would not be eligible to claim benefit of partial exemption under the notification dated 06.05.1986. The notification dated 12.03.1997 had remained in force upto 31st March, 1998. The circular dated 15.04.1994 in express words was not applicable to the notification dated 21.01.2000.24. It is limpid that the circular dated 15.04.1994, when in force, had referred to the notifications dated 07.03.1994 as well as 06.05.1986. Under the notification dated 07.03.1994, the rate of central tax on inter-State sale of cement was unconditionally fixed at 4%, even when there was no declaration in Form C and Form D. The notification dated 06.05.1986 relating to inter-State sale required Form C and Form D, for availing the benefit. The circular did not in clear and categorical terms lay down that dual or multiple benefits under the two notifications could be availed of by the same dealer. It, however, appears that both the assessee and the Revenue had understood the circular dated 15.04.1994 to mean that inter-State transactions would qualify and would be entitled to partial exemption under the notification dated 06.05.1986, when accompanied with Form C and D and for inter-State sale transactions without Form C and D, benefit of notification dated 07.03.1994 would apply.25. The understanding by the assessee and the Revenue, in the obtaining factual matrix, has its own limitation. It is because the principle of res judicata would have no application in spite of the understanding by the assessee and the Revenue, for the circular dated 15.04.1994, is not to the specific effect as suggested and, further notification dated 07.03.1994 was valid between 1st April, 1994 up to 31st March, 1997 (upto 31st March, 1997 vide notification dated 12.03.1997) and not thereafter. The Commercial Tax Department, by a circular, could have extended the benefit under a notification and, therefore, principle of estoppels would apply, though there are authorities which opine that a circular could not have altered and restricted the notification to the determent of the assessee. Circulars issued under tax enactments can tone down the rigour of law, for an authority which wields power for its own advantage is given right to forego advantage when required and considered necessary. This power to issue circulars is for just, proper and efficient management of the work and in public interest. It is a beneficial power for proper administration of fiscal law, so that undue hardship may not be caused. Circulars are binding on the authorities administering the enactment but cannot alter the provision of the enactment, etc. to the detriment of the assessee. Needless to emphasise that a circular should not be adverse and cause prejudice to the assessee. (See : UCO Bank, Calcutta v. Commissioner of Income Tax, West Bengal ((1999) 4 SCC 599 ).26. In Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries (2008) 13 SCC 1 ), it has been held that circulars and instructions issued by the Board are binding on the authorities under respective statute, but when this Court or High Court lays down a principle, it would be appropriate for the Court to direct that the circular should not be given effect to, for the circulars are not binding on the Court. In the case at hand, once circular dated 15.04.1994 stands withdrawn vide circular dated 16.04.2001, the appellant-assessee cannot claim the benefit of the withdrawn circular.27. The controversy herein centres round the period from 1st April, 2001 to 31st March, 2002. The period in question is mostly post the circular dated 16.04.2001. As we find, the appellant-assessee has pleaded to take benefit of the circular dated 15.04.1994, which stands withdrawn and was only applicable to the notification dated 07.03.1994. It was not specifically applicable to the notification dated 21.01.2000. The fact that the third paragraph of the notification dated 21.01.2000 is identically worded to the third paragraph of the notification dated 07.03.1994 but that would not by itself justify the applicability of circular dated 15.04.1994.28. In this context, we may note another contention that has been advanced before us. It is based upon the doctrine of contemporanea exposition. In our considered opinion, the said doctrine would not be applicable and cannot be pressed into service. Usage or practice developed under a statute is indicative of the meaning prescribed to its words by contemporary opinion. In case of an ancient statute, doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business. (See : G.P. Singh’s Principles of Statutory Interpretation, 13th Edition-2012 at page 344). It has been held in Rohitash Kumar and others v. Om Prakash Sharma and others (2013) 11 SCC 451 ) that the said doctrine has to be applied with caution and the Rule must give way when the language of the statute is plain and unambiguous. On a careful scrutiny of the language employed in paragraph 3 of the notification dated 21.01.2000, it is difficult to hold that the said notification is ambiguous or susceptible to two views of interpretations. The language being plain and clear, it does not admit of two different interpretations.29. In this regard, we may state that the circular dated 15.04.1994 was ambiguous and, therefore, as long as it was in operation and applicable possibly doctrine of contemporanea exposition could be taken aid of for its applicability. It is absolutely clear that the benefit and advantage was given under the circular and not under the notification dated 07.03.1994, which was lucid and couched in different terms. The circular having been withdrawn, the contention of contemporanea exposition does not commend acceptation and has to be repelled and we do so. We hold that it would certainly not apply to the notification dated 21.01.2000.30. In view of the aforesaid analysis, we
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In our considered opinion, the said doctrine would not be applicable and cannot be pressed into service. Usage or practice developed under a statute is indicative of the meaning prescribed to its words by contemporary opinion. In case of an ancient statute, doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business.the said doctrine has to be applied with caution and the Rule must give way when the language of the statute is plain and unambiguous. On a careful scrutiny of the language employed in paragraph 3 of the notification dated 21.01.2000, it is difficult to hold that the said notification is ambiguous or susceptible to two views of interpretations. The language being plain and clear, it does not admit of two differentmay state that the circular dated 15.04.1994 was ambiguous and, therefore, as long as it was in operation and applicable possibly doctrine of contemporanea exposition could be taken aid of for its applicability. It is absolutely clear that the benefit and advantage was given under the circular and not under the notification dated 07.03.1994, which was lucid and couched in different terms. The circular having been withdrawn, the contention of contemporanea exposition does not commend acceptation and has to be repelled and we do so. We hold that it would certainly not apply to the notification datedour considered opinion, the said doctrine would not be applicable and cannot be pressed into service. Usage or practice developed under a statute is indicative of the meaning prescribed to its words by contemporary opinion. In case of an ancient statute, doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business.
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J.P. Srivastava and Sons Pvt. Ltd. and Ors Vs. H.K. Srivastava through L.Rs. and Ors | file the petition. If it is so, then the shares held by the Trust cannot be taken into account for the purposes of the provisions of Section 399 and as such without passing any directions in pursuance to our conclusions at paragraphs 9 and 10, we dismiss this petition. However, since we ourselves feel that the correctness of our decision needs to be tested on appeal, we also stipulate that all subsisting interim orders will continue up to 31st March, 1999 so as to provide for some time to the parties to initiate appeal proceedings. Petition is dismissed. No order on cost. 22. We have carefully seen and noted that this Court upset only the later part of the order, particularly pertaining to the maintainability of the petition under Section 397 and 398 of the Act on account of the provision of Section 399 (3) of the Act. It specifically held in its judgment dated 26.10.2004 that the CLB had incorrectly held the said petition to be not maintainable. This Court found specifically that the objection regarding the applicability of Section 399(3) of the Act could not hold water, and it was categorically declared that the 3rd appellant (herein) had the necessary authority to file the appeal on behalf of the Trust and she as well as the Trust had more than 10% of the share capital alongwith the appellant Mrs. Nini Srivastava. Thus, it is clear that the order of the CLB only on the question of maintainability was held to be erroneous. It is to be noted that no other aspect and the finding in that order were even touched by this Court. Since this Court remanded the whole matter to the learned single Judge before which the appeals against the order of the CLB were filed, on this background, when we consider the judgment now passed after remand, by the learned single Judge, it is seen that the learned single Judge has miserably failed to decide any questions whatsoever. The parties were at issues on all the aspects of the order passed by the CLB besides the finding of the CLB on the maintainability of the petition. This Court specifically held that the objection regarding the maintainability, more particularly, raised by the respondent no. 8 was not tenable and the petition under the Company Act was perfectly maintainable. This Court had deliberately not expressed on any other aspect of the matter. A careful scanning of the order passed by this Court shows that this Court had decided the matter only on the question of applicability of Section 399 (3) of the Act and had come to a clear conclusion that the petition under Section 397 and 398 of the Act was perfectly maintainable. In short, this Court had left it to the learned single Judge to decide every other question dealt with by the CLB in its order, since the appeals against those questions were pending before the learned single Judge and since those appeals were not decided at the first instance by either the single Judge or the Division Bench. 23. On this background, we find that the single Judge has taken a very strange view of the matter and has proceeded to hold that the CLB had not decided the matter on merits, and, therefore, the whole matter was liable to be re-decided by the CLB. In this behalf, we must point out that the CLB had given the findings on C.A. No. 264 of 1997, C.A. No. 302 of 1997, C.A. No. 262 of 1998 as also the objections raised thereto by the appellants. It is for this reason that we have dealt with the order passed by the CLB in great details in the earlier part of the judgment. According to us, it cannot be said that the CLB had not decided all the other matters, since, it had found the original petition to be untenable. We, however, desist from dealing with any other findings of the CLB to which we have already made reference. We refuse to express anything, since this Court had expected the learned single Judge to decide all those matters covered by the appeals filed by both the parties and to decide upon the correctness of the order passed by the CLB on all the other issues excepting the issue of maintainability, which issue was already finally dealt with by this Court in the judgment dated 26.10.2004. We are, therefore, of the clear opinion that the matter should be referred back to the learned single Judge for deciding all the three appeals filed by the respective parties with the time frame. 24. As regards the contentions raised by Ms. Ahmadi, learned counsel for the appellants as also the contentions raised by the opponents, we have already held that it would not be feasible for us to consider the merits of the appeals filed by the parties against the order of the CLB. We have pointed out that in its order, the CLB had considered number of questions raised by the parties vide their objections and independent applications filed from time to time. Barring the question of tenability - which is finally decided upon - this Court had not considered any other questions covered in those appeals and had left the same to be decided by the single Judge. We, therefore, would not go beyond the directions of remand, earlier issued by this Court. That would be neither a proper nor an appropriate course to follow. However, we must clarify that it would be open for the High Court to go into the question as to whether the parties hereto were bound by the terms of compromise, which have been affirmed by the CLB. In that, the High Court would also be bound to consider the tenability of the appeals filed by H.K. Srivastava Group. We have clarified this position, as so far there has been no debate on the tenability of the appeals against the orders effected through compromise. | 1[ds]17. In the first two paragraphs, the CLB referred to the facts of the petition and subsequent settlement arrived at regarding the sale of shares by the petitioner at a value to be determined by a valuer appointed by the CLB. It also referred to the appointment of M/s. Thakur Vaidyanathan IyerCompany, Chartered Accountants, New Delhi to value the shares of the company. In third paragraph, the CLB referred to the presence of Mr. Vikram Srivastava, Joint Managing Director, respondent no. 3 as also the per share value arrived at by the Chartered Accountants as per their valuer report, which was arrived at Rs.7031/- per equity share. The CLB then makes a reference to the date 5.3.1997, when the counsel for the petitioners accepted the value determined by the valuer, whereas, the respondents counsel had sought some time as also to the order dated 18.3.1997, wherein, it was held that the valuers should give hearing to the petitioners as also to the respondents within three weeks. In the fourth paragraph, the CLB then refers to the written submissions before the valuer as also the revised report of 8.10.1997 and the ultimate value computed by the valuer per equity share of Rs.100 each being Rs.6340/-. It also made a reference to C.A. No. 264 of 1997 seeking for recalling the order of the Bench of valuation of the shares and for abandoning the valuation process and to proceed with the petition in accordance with law. It then made a reference to the hearing which took place on 15.12.1997, wherein, the request was made by the respondents to file objections to the valuation report as also to the further developments dated 20.12.1997 etc. and ultimately to the instructions by the CLB, wherein, the CLB had advised the parties to send notes to the Bench stating specifically the points on which they had reservations on the reports of the valuer, so that the Bench itself could take up the matter with the valuer. After referring to the fact of the parties, sending the details of their petitions, the CLB ultimately referred in this paragraph the possibility of settling the prices between the parties.18. In paragraph 5, the CLB referred to the contentions of the respondents about the valuation made by the valuer through Mr. Vijay Gupta, counsel for the respondents, mainly to the effect that the valuation was vitiated, as the person who had done the valuation on behalf of the valuers was earlier a director of the Board of a company in which one petitioner was a director. In paragraph 6, the arguments of the advocate for the petitioner were dealt with to the effect that the consent terms recorded was an independent one without having any connection with the disputes between the parties and, therefore, they should be independently implemented. The CLB also referred to the readiness on the part of the petitioners to settle all the disputes, as also to settle the other disputes through arbitration. The CLB also referred to the further arguments that, however, the payment for the shares held by the petitioner should be independent of the arbitration. In paragraph 7, the reply on the part of the advocate for the respondents was referred to, while in paragraph 8, the CLB referred to the application by respondent no. 8 being C.A. No. 262 of 1998 dated 3.11.1998. It also referred to the fact that replies were permitted to be filed to the aforementioned C.A. No. 262 of 1998, and it is ultimately in paragraphs 9 and 10 that the CLB initially dealt with the applications C.A. No. 264 of 1997 and 302 of 1997. After considering the arguments in detail, and after referring to the happenings at the earlier stage of the proceedings as also after considering a decision of the CLB in Mrs. Michelle Jawad-A1-A1-Fahoum Vs. Indo Saudi Travels P. Ltd. (1988- 30 CLA 42), the CLB observed in the present case also that:there is absolutely no reference to the private understandings between the parties in the order dated 10.6.1996 and the petitioners are not agreeable for any modification in the said consent order. Once the parties consent to certain terms of settlement and the same is recorded by a judicial forum, then the parties are bound by the said settlement terms. Therefore, there is no scope for recalling the order dated 10.6.1996 on this ground., the CLB also rejected the contention raised on behalf of the respondents that even if the consent terms were to be implemented by which the respondents would purchase the shares of the petitioners, then it could be only after the other disputes between the parties are settled and till such time, no payment need be made for the shares.19. It is then that the CLB considered the objections and prayers raised by respondent no. 8 in C.A. No. 262 of 1998 including the contention that the petition under Section 397 and 398 of the Act was not maintainable as the petitioner did not hold 10% of the share capital. The CLB firstly held that the prayer of the 8th respondent for recall of the order dated 10.6.1996 on the ground that she was not a party to consent agreement, had to be rejected20. The CLB took into consideration the various facts that the respondent no. 8 had kept quiet on large number of hearings, though, her counsel was present all through. It also made a reference that no explanation was given as to why respondent no. 8 had waited for nearly an year to present this application (C.A. No. 262 of 1998), challenging the consent terms.22. We have carefully seen and noted that this Court upset only the later part of the order, particularly pertaining to the maintainability of the petition under Section 397 and 398 of the Act on account of the provision of Section 399 (3) of the Act. It specifically held in its judgment dated 26.10.2004 that the CLB had incorrectly held the said petition to be not maintainable. This Court found specifically that the objection regarding the applicability of Section 399(3) of the Act could not hold water, and it was categorically declared that the 3rd appellant (herein) had the necessary authority to file the appeal on behalf of the Trust and she as well as the Trust had more than 10% of the share capital alongwith the appellant Mrs. Nini Srivastava. Thus, it is clear that the order of the CLB only on the question of maintainability was held to be erroneous. It is to be noted that no other aspect and the finding in that order were even touched by this Court. Since this Court remanded the whole matter to the learned single Judge before which the appeals against the order of the CLB were filed, on this background, when we consider the judgment now passed after remand, by the learned single Judge, it is seen that the learned single Judge has miserably failed to decide any questions whatsoever. The parties were at issues on all the aspects of the order passed by the CLB besides the finding of the CLB on the maintainability of the petition. This Court specifically held that the objection regarding the maintainability, more particularly, raised by the respondent no. 8 was not tenable and the petition under the Company Act was perfectly maintainable. This Court had deliberately not expressed on any other aspect of the matter. A careful scanning of the order passed by this Court shows that this Court had decided the matter only on the question of applicability of Section 399 (3) of the Act and had come to a clear conclusion that the petition under Section 397 and 398 of the Act was perfectly maintainable. In short, this Court had left it to the learned single Judge to decide every other question dealt with by the CLB in its order, since the appeals against those questions were pending before the learned single Judge and since those appeals were not decided at the first instance by either the single Judge or the Division Bench23. On this background, we find that the single Judge has taken a very strange view of the matter and has proceeded to hold that the CLB had not decided the matter on merits, and, therefore, the whole matter was liable to be re-decided by the CLB. In this behalf, we must point out that the CLB had given the findings on C.A. No. 264 of 1997, C.A. No. 302 of 1997, C.A. No. 262 of 1998 as also the objections raised thereto by the appellants. It is for this reason that we have dealt with the order passed by the CLB in great details in the earlier part of the judgment. According to us, it cannot be said that the CLB had not decided all the other matters, since, it had found the original petition to be untenable. We, however, desist from dealing with any other findings of the CLB to which we have already made reference. We refuse to express anything, since this Court had expected the learned single Judge to decide all those matters covered by the appeals filed by both the parties and to decide upon the correctness of the order passed by the CLB on all the other issues excepting the issue of maintainability, which issue was already finally dealt with by this Court in the judgment dated 26.10.2004. We are, therefore, of the clear opinion that the matter should be referred back to the learned single Judge for deciding all the three appeals filed by the respective parties with the time frame24. As regards the contentions raised by Ms. Ahmadi, learned counsel for the appellants as also the contentions raised by the opponents, we have already held that it would not be feasible for us to consider the merits of the appeals filed by the parties against the order of the CLB. We have pointed out that in its order, the CLB had considered number of questions raised by the parties vide their objections and independent applications filed from time to time. Barring the question of tenability - which is finally decided upon - this Court had not considered any other questions covered in those appeals and had left the same to be decided by the single Judge. We, therefore, would not go beyond the directions of remand, earlier issued by this Court. That would be neither a proper nor an appropriate course to follow. However, we must clarify that it would be open for the High Court to go into the question as to whether the parties hereto were bound by the terms of compromise, which have been affirmed by the CLB. In that, the High Court would also be bound to consider the tenability of the appeals filed by H.K. Srivastava Group. We have clarified this position, as so far there has been no debate on the tenability of the appeals against the orders effected through compromise. | 1 | 4,948 | 2,010 | ### 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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file the petition. If it is so, then the shares held by the Trust cannot be taken into account for the purposes of the provisions of Section 399 and as such without passing any directions in pursuance to our conclusions at paragraphs 9 and 10, we dismiss this petition. However, since we ourselves feel that the correctness of our decision needs to be tested on appeal, we also stipulate that all subsisting interim orders will continue up to 31st March, 1999 so as to provide for some time to the parties to initiate appeal proceedings. Petition is dismissed. No order on cost. 22. We have carefully seen and noted that this Court upset only the later part of the order, particularly pertaining to the maintainability of the petition under Section 397 and 398 of the Act on account of the provision of Section 399 (3) of the Act. It specifically held in its judgment dated 26.10.2004 that the CLB had incorrectly held the said petition to be not maintainable. This Court found specifically that the objection regarding the applicability of Section 399(3) of the Act could not hold water, and it was categorically declared that the 3rd appellant (herein) had the necessary authority to file the appeal on behalf of the Trust and she as well as the Trust had more than 10% of the share capital alongwith the appellant Mrs. Nini Srivastava. Thus, it is clear that the order of the CLB only on the question of maintainability was held to be erroneous. It is to be noted that no other aspect and the finding in that order were even touched by this Court. Since this Court remanded the whole matter to the learned single Judge before which the appeals against the order of the CLB were filed, on this background, when we consider the judgment now passed after remand, by the learned single Judge, it is seen that the learned single Judge has miserably failed to decide any questions whatsoever. The parties were at issues on all the aspects of the order passed by the CLB besides the finding of the CLB on the maintainability of the petition. This Court specifically held that the objection regarding the maintainability, more particularly, raised by the respondent no. 8 was not tenable and the petition under the Company Act was perfectly maintainable. This Court had deliberately not expressed on any other aspect of the matter. A careful scanning of the order passed by this Court shows that this Court had decided the matter only on the question of applicability of Section 399 (3) of the Act and had come to a clear conclusion that the petition under Section 397 and 398 of the Act was perfectly maintainable. In short, this Court had left it to the learned single Judge to decide every other question dealt with by the CLB in its order, since the appeals against those questions were pending before the learned single Judge and since those appeals were not decided at the first instance by either the single Judge or the Division Bench. 23. On this background, we find that the single Judge has taken a very strange view of the matter and has proceeded to hold that the CLB had not decided the matter on merits, and, therefore, the whole matter was liable to be re-decided by the CLB. In this behalf, we must point out that the CLB had given the findings on C.A. No. 264 of 1997, C.A. No. 302 of 1997, C.A. No. 262 of 1998 as also the objections raised thereto by the appellants. It is for this reason that we have dealt with the order passed by the CLB in great details in the earlier part of the judgment. According to us, it cannot be said that the CLB had not decided all the other matters, since, it had found the original petition to be untenable. We, however, desist from dealing with any other findings of the CLB to which we have already made reference. We refuse to express anything, since this Court had expected the learned single Judge to decide all those matters covered by the appeals filed by both the parties and to decide upon the correctness of the order passed by the CLB on all the other issues excepting the issue of maintainability, which issue was already finally dealt with by this Court in the judgment dated 26.10.2004. We are, therefore, of the clear opinion that the matter should be referred back to the learned single Judge for deciding all the three appeals filed by the respective parties with the time frame. 24. As regards the contentions raised by Ms. Ahmadi, learned counsel for the appellants as also the contentions raised by the opponents, we have already held that it would not be feasible for us to consider the merits of the appeals filed by the parties against the order of the CLB. We have pointed out that in its order, the CLB had considered number of questions raised by the parties vide their objections and independent applications filed from time to time. Barring the question of tenability - which is finally decided upon - this Court had not considered any other questions covered in those appeals and had left the same to be decided by the single Judge. We, therefore, would not go beyond the directions of remand, earlier issued by this Court. That would be neither a proper nor an appropriate course to follow. However, we must clarify that it would be open for the High Court to go into the question as to whether the parties hereto were bound by the terms of compromise, which have been affirmed by the CLB. In that, the High Court would also be bound to consider the tenability of the appeals filed by H.K. Srivastava Group. We have clarified this position, as so far there has been no debate on the tenability of the appeals against the orders effected through compromise.
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did not hold 10% of the share capital. The CLB firstly held that the prayer of the 8th respondent for recall of the order dated 10.6.1996 on the ground that she was not a party to consent agreement, had to be rejected20. The CLB took into consideration the various facts that the respondent no. 8 had kept quiet on large number of hearings, though, her counsel was present all through. It also made a reference that no explanation was given as to why respondent no. 8 had waited for nearly an year to present this application (C.A. No. 262 of 1998), challenging the consent terms.22. We have carefully seen and noted that this Court upset only the later part of the order, particularly pertaining to the maintainability of the petition under Section 397 and 398 of the Act on account of the provision of Section 399 (3) of the Act. It specifically held in its judgment dated 26.10.2004 that the CLB had incorrectly held the said petition to be not maintainable. This Court found specifically that the objection regarding the applicability of Section 399(3) of the Act could not hold water, and it was categorically declared that the 3rd appellant (herein) had the necessary authority to file the appeal on behalf of the Trust and she as well as the Trust had more than 10% of the share capital alongwith the appellant Mrs. Nini Srivastava. Thus, it is clear that the order of the CLB only on the question of maintainability was held to be erroneous. It is to be noted that no other aspect and the finding in that order were even touched by this Court. Since this Court remanded the whole matter to the learned single Judge before which the appeals against the order of the CLB were filed, on this background, when we consider the judgment now passed after remand, by the learned single Judge, it is seen that the learned single Judge has miserably failed to decide any questions whatsoever. The parties were at issues on all the aspects of the order passed by the CLB besides the finding of the CLB on the maintainability of the petition. This Court specifically held that the objection regarding the maintainability, more particularly, raised by the respondent no. 8 was not tenable and the petition under the Company Act was perfectly maintainable. This Court had deliberately not expressed on any other aspect of the matter. A careful scanning of the order passed by this Court shows that this Court had decided the matter only on the question of applicability of Section 399 (3) of the Act and had come to a clear conclusion that the petition under Section 397 and 398 of the Act was perfectly maintainable. In short, this Court had left it to the learned single Judge to decide every other question dealt with by the CLB in its order, since the appeals against those questions were pending before the learned single Judge and since those appeals were not decided at the first instance by either the single Judge or the Division Bench23. On this background, we find that the single Judge has taken a very strange view of the matter and has proceeded to hold that the CLB had not decided the matter on merits, and, therefore, the whole matter was liable to be re-decided by the CLB. In this behalf, we must point out that the CLB had given the findings on C.A. No. 264 of 1997, C.A. No. 302 of 1997, C.A. No. 262 of 1998 as also the objections raised thereto by the appellants. It is for this reason that we have dealt with the order passed by the CLB in great details in the earlier part of the judgment. According to us, it cannot be said that the CLB had not decided all the other matters, since, it had found the original petition to be untenable. We, however, desist from dealing with any other findings of the CLB to which we have already made reference. We refuse to express anything, since this Court had expected the learned single Judge to decide all those matters covered by the appeals filed by both the parties and to decide upon the correctness of the order passed by the CLB on all the other issues excepting the issue of maintainability, which issue was already finally dealt with by this Court in the judgment dated 26.10.2004. We are, therefore, of the clear opinion that the matter should be referred back to the learned single Judge for deciding all the three appeals filed by the respective parties with the time frame24. As regards the contentions raised by Ms. Ahmadi, learned counsel for the appellants as also the contentions raised by the opponents, we have already held that it would not be feasible for us to consider the merits of the appeals filed by the parties against the order of the CLB. We have pointed out that in its order, the CLB had considered number of questions raised by the parties vide their objections and independent applications filed from time to time. Barring the question of tenability - which is finally decided upon - this Court had not considered any other questions covered in those appeals and had left the same to be decided by the single Judge. We, therefore, would not go beyond the directions of remand, earlier issued by this Court. That would be neither a proper nor an appropriate course to follow. However, we must clarify that it would be open for the High Court to go into the question as to whether the parties hereto were bound by the terms of compromise, which have been affirmed by the CLB. In that, the High Court would also be bound to consider the tenability of the appeals filed by H.K. Srivastava Group. We have clarified this position, as so far there has been no debate on the tenability of the appeals against the orders effected through compromise.
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Daulat Ram Vs. State Of Punjab | defence version as if it required the standard of proof as that of a prosecution case. The High Court however avoided pursuing that course and confined itself to the prosecution case. If holes can be picked in the defence that doesnt lead to the prosecution story being automatically proved. The prosecution has to stand on its own legs and can derive no advantage from the weakness of the defence. Keeping that in view, we proceed further. 9. The time of the occurrence is seriously in dispute. According to the prosecution the occurrence took place at 2.00 PM and according to the defence it took place at about 8.00 A.M. in the morning. The site of the crime is not disputed. According to Dr. Vinod Kumar PW.1 the time between death and post- mortem could be upto eight hours. Thus according to the medical opinion the crime could have been committed eight hours earlier to 5.30 PM, putting it around 9.00 am. However that cannot be viewed as a certainty. Coming to the post-mortem report Ex.PA, the abdomen of the deceased when dissected showed that the stomach and its contents were healthy and empty. The small intestines and their contents were described as healthy and containing small amount of semi-digested food. Large intestines and their contents were shown to be healthy and empty. The bladder was shown to be healthy and containing small amount of urine. Thus from the post-mortem report, it is conclusively established that before his death the deceased had not taken full meals for hours. The prosecution would have us believe that uptil 2 PM, when he was about to leave Rajpura for Sunam in the company of his uncle Gurnam Singh PW, he was not expected to have taken regular breakfast or the noon-time meal. According to Gurnam Singh PW when he and Hardial Singh had reached Rajpura at about 1.00 PM, they had not taken tea etc. at the house of the deceased and further that the deceased also had not taken any food etc. in the presence of those two. The condition of the stomach and that of the intestines and the bladder does indicate that the occurrence perhaps took place much earlier to the expected time for breakfast and lunch, possibly in the morning hours. The courts below have totally ignored this aspect of the case. 10. It is worthy of recall that the deceased was an educated youngman of 25 wanting to set up a business at Rajpura. He seemingly had done well in building a house of his own. He had good parentage. Supposedly accompanying his uncle in order to go to Sunam he is said to have been wearing a T-shirt and pyjamas, a dress uncommon to be worn for going to places. The top dress does not match with the bottom one. Having regard to the normal pattern of life, the deceased was expected when wearing a T-shirt to match it with a pair of trousers or Jeans and not with pyjamas. Likewise if he was to be wearing pyjamas he would be matching it with a shirt or a kurta and not a T-shirt. The manner of his dress was least suggestive of the fact that he was set for travel to another destination 55 miles away in the company of his uncle. The dress of the deceased is therefore somewhat intriguing. It is more close to the theory that in morning hours he was casually dressed and had gone to the house of the accused with designs which were far from honourable. 11. The two supposed eye-witnesses Gurnam Singh and Hardial Singh PWs are from Sunam and according to their own version seem to have come there to take away the deceased. Their coming to the house of the deceased is a strange coincidence orchestrated so as to witness him being killed. It is rather strange that Gurnam Singh PW on his own would be caring for his nephew to desist from his amorous relationship with Pushpa, PW without taking into confidence the deceaseds father. According to his statement he had kept the affair to himself. Strangely he took into confidence rather Hardial Singh, PW and brought him along to Rajpura. It is difficult to understand what purpose had Hardial Singh to serve in accompanying Gurnam Singh to Rajpura to fetch the deceased. The prosecution has not advanced any cogent reason as to why the presence of these witnesses be not doubted, especially when the time of occurrence is shrouded in doubt. In addition thereto is the defence evidence suggesting that both police stations i.e. at Malerkotla and Sunam where the father and uncle of the deceased lived respectively were frantically being attempted to be contacted on police station to police station connection. All these facts lend credence to the defence version that the P.Ws had come to know of the crime because the matter had been reported at the police station in the first instance by P.W.6 followed by the appellant. 12. Lastly no one from the neighborhood has come forward to support the prosecution even though the investigating officer says that he questioned some people in the neighbourhood. It was for him to say as to whom he had questioned and not for the defence to elicit those names so as to call those persons in defence, as expected by the learned Sessions Judge.13. Thus on the totality of circumstances we have come to entertain the doubt that neither of the two supposed eye-witnesses were present at the scene of the occurrence, nor have they witnessed the same. We have also entertained the doubt about the time of the occurrence and the manner in which the prosecution would have us believe that it took place. It could well be that it had taken place as suggested by the defence. The dress of the deceased and the contents of his abdomen suggest that he was murdered much before 2.00 PM, the time positively asserted by the prosecution. | 1[ds]13. Thus on the totality of circumstances we have come to entertain the doubt that neither of the two supposed eye-witnesses were present at the scene of the occurrence, nor have they witnessed the same. We have also entertained the doubt about the time of the occurrence and the manner in which the prosecution would have us believe that it took place. It could well be that it had taken place as suggested by the defence. The dress of the deceased and the contents of his abdomen suggest that he was murdered much before 2.00 PM, the time positively asserted by the prosecution. | 1 | 2,275 | 114 | ### 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:
defence version as if it required the standard of proof as that of a prosecution case. The High Court however avoided pursuing that course and confined itself to the prosecution case. If holes can be picked in the defence that doesnt lead to the prosecution story being automatically proved. The prosecution has to stand on its own legs and can derive no advantage from the weakness of the defence. Keeping that in view, we proceed further. 9. The time of the occurrence is seriously in dispute. According to the prosecution the occurrence took place at 2.00 PM and according to the defence it took place at about 8.00 A.M. in the morning. The site of the crime is not disputed. According to Dr. Vinod Kumar PW.1 the time between death and post- mortem could be upto eight hours. Thus according to the medical opinion the crime could have been committed eight hours earlier to 5.30 PM, putting it around 9.00 am. However that cannot be viewed as a certainty. Coming to the post-mortem report Ex.PA, the abdomen of the deceased when dissected showed that the stomach and its contents were healthy and empty. The small intestines and their contents were described as healthy and containing small amount of semi-digested food. Large intestines and their contents were shown to be healthy and empty. The bladder was shown to be healthy and containing small amount of urine. Thus from the post-mortem report, it is conclusively established that before his death the deceased had not taken full meals for hours. The prosecution would have us believe that uptil 2 PM, when he was about to leave Rajpura for Sunam in the company of his uncle Gurnam Singh PW, he was not expected to have taken regular breakfast or the noon-time meal. According to Gurnam Singh PW when he and Hardial Singh had reached Rajpura at about 1.00 PM, they had not taken tea etc. at the house of the deceased and further that the deceased also had not taken any food etc. in the presence of those two. The condition of the stomach and that of the intestines and the bladder does indicate that the occurrence perhaps took place much earlier to the expected time for breakfast and lunch, possibly in the morning hours. The courts below have totally ignored this aspect of the case. 10. It is worthy of recall that the deceased was an educated youngman of 25 wanting to set up a business at Rajpura. He seemingly had done well in building a house of his own. He had good parentage. Supposedly accompanying his uncle in order to go to Sunam he is said to have been wearing a T-shirt and pyjamas, a dress uncommon to be worn for going to places. The top dress does not match with the bottom one. Having regard to the normal pattern of life, the deceased was expected when wearing a T-shirt to match it with a pair of trousers or Jeans and not with pyjamas. Likewise if he was to be wearing pyjamas he would be matching it with a shirt or a kurta and not a T-shirt. The manner of his dress was least suggestive of the fact that he was set for travel to another destination 55 miles away in the company of his uncle. The dress of the deceased is therefore somewhat intriguing. It is more close to the theory that in morning hours he was casually dressed and had gone to the house of the accused with designs which were far from honourable. 11. The two supposed eye-witnesses Gurnam Singh and Hardial Singh PWs are from Sunam and according to their own version seem to have come there to take away the deceased. Their coming to the house of the deceased is a strange coincidence orchestrated so as to witness him being killed. It is rather strange that Gurnam Singh PW on his own would be caring for his nephew to desist from his amorous relationship with Pushpa, PW without taking into confidence the deceaseds father. According to his statement he had kept the affair to himself. Strangely he took into confidence rather Hardial Singh, PW and brought him along to Rajpura. It is difficult to understand what purpose had Hardial Singh to serve in accompanying Gurnam Singh to Rajpura to fetch the deceased. The prosecution has not advanced any cogent reason as to why the presence of these witnesses be not doubted, especially when the time of occurrence is shrouded in doubt. In addition thereto is the defence evidence suggesting that both police stations i.e. at Malerkotla and Sunam where the father and uncle of the deceased lived respectively were frantically being attempted to be contacted on police station to police station connection. All these facts lend credence to the defence version that the P.Ws had come to know of the crime because the matter had been reported at the police station in the first instance by P.W.6 followed by the appellant. 12. Lastly no one from the neighborhood has come forward to support the prosecution even though the investigating officer says that he questioned some people in the neighbourhood. It was for him to say as to whom he had questioned and not for the defence to elicit those names so as to call those persons in defence, as expected by the learned Sessions Judge.13. Thus on the totality of circumstances we have come to entertain the doubt that neither of the two supposed eye-witnesses were present at the scene of the occurrence, nor have they witnessed the same. We have also entertained the doubt about the time of the occurrence and the manner in which the prosecution would have us believe that it took place. It could well be that it had taken place as suggested by the defence. The dress of the deceased and the contents of his abdomen suggest that he was murdered much before 2.00 PM, the time positively asserted by the prosecution.
### Response:
1
### Explanation:
13. Thus on the totality of circumstances we have come to entertain the doubt that neither of the two supposed eye-witnesses were present at the scene of the occurrence, nor have they witnessed the same. We have also entertained the doubt about the time of the occurrence and the manner in which the prosecution would have us believe that it took place. It could well be that it had taken place as suggested by the defence. The dress of the deceased and the contents of his abdomen suggest that he was murdered much before 2.00 PM, the time positively asserted by the prosecution.
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M/s Liberty India Vs. Commissioner of Income Tax | adopted to reduce or inflate the profits of eligible business has got to be rejected in view of the overriding provisions of sub- section (5) of Section 80-IA, which are also required to be read into Section 80-IB. [see Section 80-IB(13)]. We may reiterate that Sections 80I, 80-IA and 80-IB have a common scheme and if so read it is clear that the said sections provide for incentives in the form of deduction(s) which are linked to profits and not to investment. On analysis of Sections 80-IA and 80-IB it becomes clear that any industrial undertaking, which becomes eligible on satisfying sub-section(2), would be entitled to deduction under sub-section (1) only to the extent of profits derived from such industrial undertaking after specified date(s). Hence, apart from eligibility, sub-section(1) purports to restrict the quantum of deduction to a specified percentage of profits. This is the importance of the words "derived from industrial undertaking" as against "profits attributable to industrial undertaking". 16. DEPB is an incentive. It is given under Duty Exemption Remission Scheme. Essentially, it is an export incentive. No doubt, the object behind DEPB is to neutralize the incidence of customs duty payment on the import content of export product. This neutralization is provided for by credit to customs duty against export product. Under DEPB, an exporter may apply for credit as percentage of FOB value of exports made in freely convertible currency. Credit is available only against the export product and at rates specified by DGFT for import of raw materials, components etc.. DEPB credit under the Scheme has to be calculated by taking into account the deemed import content of the export product as per basic customs duty and special additional duty payable on such deemed imports. Therefore, in our view, DEPB/Duty Drawback are incentives which flow from the Schemes framed by Central Government or from Section 75 of the Customs Act,1962, hence, incentives profits are not profits derived from the eligible business under Section 80-IB. They belong to the category of ancillary profits of such Undertakings. 17. The next question is - what is duty drawback? Section 75 of the Customs Act, 1962 and Section 37 of the Central Excise Act, 1944 empower Government of India to provide for repayment of customs and excise duty paid by an assessee. The refund is of the average amount of duty paid on materials of any particular class or description of goods used in the manufacture of export goods of specified class. The Rules do not envisage a refund of an amount arithmetically equal to customs duty or central excise duty actually paid by an individual importer-cum-manufacturer. Sub-section (2) of Section 75 of the Customs Act requires the amount of drawback to be determined on a consideration of all the circumstances prevalent in a particular trade and also based on the facts situation relevant in respect of each of various classes of goods imported. Basically, the source of duty drawback receipt lies in Section 75 of the Customs Act and Section 37 of the Central Excise Act. 18. Analysing the concept of remission of duty drawback and DEPB, we are satisfied that the remission of duty is on account of the statutory/policy provisions in the Customs Act/Scheme(s) framed by the Government of India. In the circumstances, we hold that profits derived by way of such incentives do not fall within the expression "profits derived from industrial undertaking" in Section 80-IB.19. Since reliance was placed on behalf of the assessee(s) on AS-2 we need to analyse the said Standard.20. AS-2 deals with Valuation of Inventories. Inventories are assets held for sale in the course of business; in the production for such sale or in form of materials or supplies to be consumed in the production. 21. "Inventory" should be valued at the lower of cost and net realizable value (NRV). The cost of "inventory" should comprise all costs of purchase, costs of conversion and other costs including costs incurred in bringing the "inventory" to their present location and condition. 22. The cost of purchase includes duties and taxes (other than those subsequently recoverable by the enterprise from taxing authorities), freight inwards and other expenditure directly attributable to the acquisition. Hence trade discounts, rebate, duty drawback, and such similar items are deducted in determining the costs of purchase. Therefore, duty drawback, rebate etc. should not be treated as adjustment (credited) to cost of purchase or manufacture of goods. They should be treated as separate items of revenue or income and accounted for accordingly (see: page 44 of Indian Accounting Standards & GAAP by Dolphy Dsouza). Therefore, for the purposes of AS-2, Cenvat credits should not be included in the cost of purchase of inventories. Even Institute of Chartered Accountants of India (ICAI) has issued Guidance Note on Accounting Treatment for Cenvat/Modvat under which the inputs consumed and the inventory of inputs should be valued on the basis of purchase cost net of specified duty on inputs (i.e. duty recoverable from the Department at later stage) arising on account of rebates, duty drawback, DEPB benefit etc. Profit generation could be on account of cost cutting, cost rationalization, business restructuring, tax planning on sundry balances being written back, liquidation of current assets etc. Therefore, we are of the view that duty drawback, DEPB benefits, rebates etc. cannot be credited against the cost of manufacture of goods debited in the Profit & Loss account for purposes of Sections 80-IA/80-IB as such remissions (credits) would constitute independent source of income beyond the first degree nexus between profits and the industrial undertaking. 23. We are of the view that Department has correctly applied AS-2 as could be seen from the following illustration: TABLE Note: In above example, Department is allowing deduction on profit of Rs. 100 under Section 80-IB of the 1961 Act. 24. In the circumstances, we hold that Duty drawback receipt/DEPB benefits do not form part of the net profits of eligible industrial undertaking for the purposes of Sections 80I/80-IA/80-IB of the 1961 Act. | 0[ds]18. Analysing the concept of remission of duty drawback and DEPB, we are satisfied that the remission of duty is on account of the statutory/policy provisions in the Customs Act/Scheme(s) framed by the Government of India. In the circumstances, we hold that profits derived by way of such incentives do not fall within the expression "profits derived from industrial undertaking" in Section 80-IB.19. Since reliance was placed on behalf of the assessee(s) on AS-2 we need to analyse the said Standard.20. AS-2 deals with Valuation of Inventories. Inventories are assets held for sale in the course of business; in the production for such sale or in form of materials or supplies to be consumed in the production.The cost of purchase includes duties and taxes (other than those subsequently recoverable by the enterprise from taxing authorities), freight inwards and other expenditure directly attributable to the acquisition. Hence trade discounts, rebate, duty drawback, and such similar items are deducted in determining the costs of purchase. Therefore, duty drawback, rebate etc. should not be treated as adjustment (credited) to cost of purchase or manufacture of goods. They should be treated as separate items of revenue or income and accounted for accordingly (see: page 44 of Indian Accounting Standards & GAAP by Dolphy Dsouza). Therefore, for the purposes of AS-2, Cenvat credits should not be included in the cost of purchase of inventories. Even Institute of Chartered Accountants of India (ICAI) has issued Guidance Note on Accounting Treatment for Cenvat/Modvat under which the inputs consumed and the inventory of inputs should be valued on the basis of purchase cost net of specified duty on inputs (i.e. duty recoverable from the Department at later stage) arising on account of rebates, duty drawback, DEPB benefit etc. Profit generation could be on account of cost cutting, cost rationalization, business restructuring, tax planning on sundry balances being written back, liquidation of current assets etc. Therefore, we are of the view that duty drawback, DEPB benefits, rebates etc. cannot be credited against the cost of manufacture of goods debited in the Profit & Loss account for purposes of Sections 80-IA/80-IB as such remissions (credits) would constitute independent source of income beyond the first degree nexus between profits and the industrial undertaking.In the circumstances, we hold that Duty drawback receipt/DEPB benefits do not form part of the net profits of eligible industrial undertaking for the purposes of Sections 80I/80-IA/80-IB of the 1961 | 0 | 6,586 | 464 | ### 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:
adopted to reduce or inflate the profits of eligible business has got to be rejected in view of the overriding provisions of sub- section (5) of Section 80-IA, which are also required to be read into Section 80-IB. [see Section 80-IB(13)]. We may reiterate that Sections 80I, 80-IA and 80-IB have a common scheme and if so read it is clear that the said sections provide for incentives in the form of deduction(s) which are linked to profits and not to investment. On analysis of Sections 80-IA and 80-IB it becomes clear that any industrial undertaking, which becomes eligible on satisfying sub-section(2), would be entitled to deduction under sub-section (1) only to the extent of profits derived from such industrial undertaking after specified date(s). Hence, apart from eligibility, sub-section(1) purports to restrict the quantum of deduction to a specified percentage of profits. This is the importance of the words "derived from industrial undertaking" as against "profits attributable to industrial undertaking". 16. DEPB is an incentive. It is given under Duty Exemption Remission Scheme. Essentially, it is an export incentive. No doubt, the object behind DEPB is to neutralize the incidence of customs duty payment on the import content of export product. This neutralization is provided for by credit to customs duty against export product. Under DEPB, an exporter may apply for credit as percentage of FOB value of exports made in freely convertible currency. Credit is available only against the export product and at rates specified by DGFT for import of raw materials, components etc.. DEPB credit under the Scheme has to be calculated by taking into account the deemed import content of the export product as per basic customs duty and special additional duty payable on such deemed imports. Therefore, in our view, DEPB/Duty Drawback are incentives which flow from the Schemes framed by Central Government or from Section 75 of the Customs Act,1962, hence, incentives profits are not profits derived from the eligible business under Section 80-IB. They belong to the category of ancillary profits of such Undertakings. 17. The next question is - what is duty drawback? Section 75 of the Customs Act, 1962 and Section 37 of the Central Excise Act, 1944 empower Government of India to provide for repayment of customs and excise duty paid by an assessee. The refund is of the average amount of duty paid on materials of any particular class or description of goods used in the manufacture of export goods of specified class. The Rules do not envisage a refund of an amount arithmetically equal to customs duty or central excise duty actually paid by an individual importer-cum-manufacturer. Sub-section (2) of Section 75 of the Customs Act requires the amount of drawback to be determined on a consideration of all the circumstances prevalent in a particular trade and also based on the facts situation relevant in respect of each of various classes of goods imported. Basically, the source of duty drawback receipt lies in Section 75 of the Customs Act and Section 37 of the Central Excise Act. 18. Analysing the concept of remission of duty drawback and DEPB, we are satisfied that the remission of duty is on account of the statutory/policy provisions in the Customs Act/Scheme(s) framed by the Government of India. In the circumstances, we hold that profits derived by way of such incentives do not fall within the expression "profits derived from industrial undertaking" in Section 80-IB.19. Since reliance was placed on behalf of the assessee(s) on AS-2 we need to analyse the said Standard.20. AS-2 deals with Valuation of Inventories. Inventories are assets held for sale in the course of business; in the production for such sale or in form of materials or supplies to be consumed in the production. 21. "Inventory" should be valued at the lower of cost and net realizable value (NRV). The cost of "inventory" should comprise all costs of purchase, costs of conversion and other costs including costs incurred in bringing the "inventory" to their present location and condition. 22. The cost of purchase includes duties and taxes (other than those subsequently recoverable by the enterprise from taxing authorities), freight inwards and other expenditure directly attributable to the acquisition. Hence trade discounts, rebate, duty drawback, and such similar items are deducted in determining the costs of purchase. Therefore, duty drawback, rebate etc. should not be treated as adjustment (credited) to cost of purchase or manufacture of goods. They should be treated as separate items of revenue or income and accounted for accordingly (see: page 44 of Indian Accounting Standards & GAAP by Dolphy Dsouza). Therefore, for the purposes of AS-2, Cenvat credits should not be included in the cost of purchase of inventories. Even Institute of Chartered Accountants of India (ICAI) has issued Guidance Note on Accounting Treatment for Cenvat/Modvat under which the inputs consumed and the inventory of inputs should be valued on the basis of purchase cost net of specified duty on inputs (i.e. duty recoverable from the Department at later stage) arising on account of rebates, duty drawback, DEPB benefit etc. Profit generation could be on account of cost cutting, cost rationalization, business restructuring, tax planning on sundry balances being written back, liquidation of current assets etc. Therefore, we are of the view that duty drawback, DEPB benefits, rebates etc. cannot be credited against the cost of manufacture of goods debited in the Profit & Loss account for purposes of Sections 80-IA/80-IB as such remissions (credits) would constitute independent source of income beyond the first degree nexus between profits and the industrial undertaking. 23. We are of the view that Department has correctly applied AS-2 as could be seen from the following illustration: TABLE Note: In above example, Department is allowing deduction on profit of Rs. 100 under Section 80-IB of the 1961 Act. 24. In the circumstances, we hold that Duty drawback receipt/DEPB benefits do not form part of the net profits of eligible industrial undertaking for the purposes of Sections 80I/80-IA/80-IB of the 1961 Act.
### Response:
0
### Explanation:
18. Analysing the concept of remission of duty drawback and DEPB, we are satisfied that the remission of duty is on account of the statutory/policy provisions in the Customs Act/Scheme(s) framed by the Government of India. In the circumstances, we hold that profits derived by way of such incentives do not fall within the expression "profits derived from industrial undertaking" in Section 80-IB.19. Since reliance was placed on behalf of the assessee(s) on AS-2 we need to analyse the said Standard.20. AS-2 deals with Valuation of Inventories. Inventories are assets held for sale in the course of business; in the production for such sale or in form of materials or supplies to be consumed in the production.The cost of purchase includes duties and taxes (other than those subsequently recoverable by the enterprise from taxing authorities), freight inwards and other expenditure directly attributable to the acquisition. Hence trade discounts, rebate, duty drawback, and such similar items are deducted in determining the costs of purchase. Therefore, duty drawback, rebate etc. should not be treated as adjustment (credited) to cost of purchase or manufacture of goods. They should be treated as separate items of revenue or income and accounted for accordingly (see: page 44 of Indian Accounting Standards & GAAP by Dolphy Dsouza). Therefore, for the purposes of AS-2, Cenvat credits should not be included in the cost of purchase of inventories. Even Institute of Chartered Accountants of India (ICAI) has issued Guidance Note on Accounting Treatment for Cenvat/Modvat under which the inputs consumed and the inventory of inputs should be valued on the basis of purchase cost net of specified duty on inputs (i.e. duty recoverable from the Department at later stage) arising on account of rebates, duty drawback, DEPB benefit etc. Profit generation could be on account of cost cutting, cost rationalization, business restructuring, tax planning on sundry balances being written back, liquidation of current assets etc. Therefore, we are of the view that duty drawback, DEPB benefits, rebates etc. cannot be credited against the cost of manufacture of goods debited in the Profit & Loss account for purposes of Sections 80-IA/80-IB as such remissions (credits) would constitute independent source of income beyond the first degree nexus between profits and the industrial undertaking.In the circumstances, we hold that Duty drawback receipt/DEPB benefits do not form part of the net profits of eligible industrial undertaking for the purposes of Sections 80I/80-IA/80-IB of the 1961
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State Of Punjab And Ors Vs. Bhai Ardaman Singh & Ors. Etc | unauthorised possession of lands. The Financial Commissioner confirmed the order of the Commissioner on the ground that substantial justice had been done by the subordinate revenue authorities, and no interference with the orders was called for. 2. Bhai Ardaman Singh then filed writ petitions in the High Court of Punjab challenging the orders passed by the Financial Commissioner. The petitions were heard by Gosain, J. In the view of the learned Judge Act 8 of 1953 was a complete machinery for the decision of disputes like the dispute before him. He observed:"Under this law Tribunals of special jurisdiction have been created and invested with powers which should enable them to effectively deal with disputes not only those which arise between the landlord and the tenant, but also those which arise between persons entitled to possession and persons wrongly dispossessing them. It may be that in the latter case the enquiry contemplated to be made by the Collector is only summary and that the aggrieved party may be able to have recourse finally to the civil court but the jurisdiction to make enquiry and to order eviction has been given by the law to the Collector." In appeals under the Letters Patent the High Court reversed the order passed by Gosain, J. The High Court was of the opinion that Act 8 of 1953 which came into force on December 13, 1953 had no retrospective operation and that Gosain, J. was in error in making an order for possession of the lands when dispossession had taken place before the Act was brought into force. The High Court also held that the proceedings of the Collector were vitiated because the Collector declined to give to the first respondent opportunity to lead evidence which he desired to lead. With certificate granted by the High Court, these appeals have been preferred by the State of Punjab. 3. Section 43 of the Pepsu Act 8 of 1953 provides:"(1) Any person who is in wrongful or unauthorise possession of any land (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or (b) to the use and occupation of which he is not entitled under the provisions of this Act, may, after summary enquiry, be ejected by the Collector who may also impose on such person a penalty not exceeding five hundred rupees. * * * * *" Clause (a) has evidently no application. It is not the case of any party that there was any transfer of the lands which was invalid by virtue of the provisions of the Act. The tenants alleged that the first respondent was in wrongful or unauthorised possession of the lands previously occupied by them.But in order that the jurisdiction of the Collector to hold a summary enquiry and pass the order complained of may be attracted, it was further necessary to establish that under Cl. (b) of S. 43 (1) the person in wrongful or unauthorised possession was not entitled to the use and occupation of the lands under the provisions of the Act.Council for the State of Punjab is unable to invite our attention to any provision which renders the first respondent disentitled by virtue of the provisions of the Act to the use and occupation of the lands. Section 43(1) (b) has, therefore, no application. The condition precedent to the investment of jurisdiction in the Collector being absent, the revenue authorities had no power to pass the order in ejectment which they purported to pass. 4. We must point out that the proceedings of the Collector are judicial in character. The trial is summary, but the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction as the Commissioner assumed, but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment. When the condition precedent to the exercise of jurisdiction does not exist, the Collector cannot clothe himself with authority to pass the impugned orders. We also agree with the High Court that in view of the terms of Cl. (b), S. 43 had no retrospective operation. On the view we take, it is unnecessary to consider the argument advanced by Mr. Chagla on behalf of the first respondent that S. 43 has no application to cases in which a dispute relating to tenancy of land arises between the landlord and his tenant. 5. It is also not necessary to consider in this group of appeals whether the proceedings of the Collector were vitiated, because as alleged by the first respondent the collector did not afford sufficient opportunity to lead evidence on the first respondents plea that there had been no wrongful dispossession of the tenants. 6. Mr. Bindra on behalf of the State contended that in any event this Court should not countenance interference with the impugned orders of the revenue authorities, even if erroneous, because those authorities have in passing the orders done substantial justice. Counsel contended that the tenants had been wrongfully deprived of possession of the lands by the use of force by the first respondent and the order passed by the Collector though not strictly warranted by law was not liable to be disturbed by the High Court in exercise of their jurisdiction to issue a writ of certiorari. We are unable to agree with that contention. If the Collector had no jurisdiction except in the special conditions prescribed by Section 43, his order could not be substantiated merely because an other authority may, if the proceedings were before that authority, on the findings recorded, have granted relief to the tenants of restoration to possession of their respective lands. Authorities which are vested with powers-judicial or quasi-judicial - can exercise their power within the limits of their jurisdiction and their actions without jurisdiction cannot be sustained merely because another body or authority, which if lawfully approached, may have jurisdiction to pass the order complained of. | 0[ds]4. We must point out that the proceedings of the Collector are judicial in character. The trial is summary, but the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction as the Commissioner assumed, but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment. When the condition precedent to the exercise of jurisdiction does not exist, the Collector cannot clothe himself with authority to pass the impugned orders. We also agree with the High Court that in view of the terms of Cl. (b), S. 43 had no retrospective operation. On the view we take, it is unnecessary to consider the argument advanced by Mr. Chagla on behalf of the first respondent that S. 43 has no application to cases in which a dispute relating to tenancy of land arises between the landlord and his tenant6. Mr. Bindra on behalf of the State contended that in any event this Court should not countenance interference with the impugned orders of the revenue authorities, even if erroneous, because those authorities have in passing the orders done substantial justice. Counsel contended that the tenants had been wrongfully deprived of possession of the lands by the use of force by the first respondent and the order passed by the Collector though not strictly warranted by law was not liable to be disturbed by the High Court in exercise of their jurisdiction to issue a writ of certiorari. We are unable to agree with that contention. If the Collector had no jurisdiction except in the special conditions prescribed by Section 43, his order could not be substantiated merely because an other authority may, if the proceedings were before that authority, on the findings recorded, have granted relief to the tenants of restoration to possession of their respective lands. Authorities which are vested with powers-judicial or quasi-judicial - can exercise their power within the limits of their jurisdiction and their actions without jurisdiction cannot be sustained merely because another body or authority, which if lawfully approached, may have jurisdiction to pass the order complained of. | 0 | 1,264 | 386 | ### Instruction:
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unauthorised possession of lands. The Financial Commissioner confirmed the order of the Commissioner on the ground that substantial justice had been done by the subordinate revenue authorities, and no interference with the orders was called for. 2. Bhai Ardaman Singh then filed writ petitions in the High Court of Punjab challenging the orders passed by the Financial Commissioner. The petitions were heard by Gosain, J. In the view of the learned Judge Act 8 of 1953 was a complete machinery for the decision of disputes like the dispute before him. He observed:"Under this law Tribunals of special jurisdiction have been created and invested with powers which should enable them to effectively deal with disputes not only those which arise between the landlord and the tenant, but also those which arise between persons entitled to possession and persons wrongly dispossessing them. It may be that in the latter case the enquiry contemplated to be made by the Collector is only summary and that the aggrieved party may be able to have recourse finally to the civil court but the jurisdiction to make enquiry and to order eviction has been given by the law to the Collector." In appeals under the Letters Patent the High Court reversed the order passed by Gosain, J. The High Court was of the opinion that Act 8 of 1953 which came into force on December 13, 1953 had no retrospective operation and that Gosain, J. was in error in making an order for possession of the lands when dispossession had taken place before the Act was brought into force. The High Court also held that the proceedings of the Collector were vitiated because the Collector declined to give to the first respondent opportunity to lead evidence which he desired to lead. With certificate granted by the High Court, these appeals have been preferred by the State of Punjab. 3. Section 43 of the Pepsu Act 8 of 1953 provides:"(1) Any person who is in wrongful or unauthorise possession of any land (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or (b) to the use and occupation of which he is not entitled under the provisions of this Act, may, after summary enquiry, be ejected by the Collector who may also impose on such person a penalty not exceeding five hundred rupees. * * * * *" Clause (a) has evidently no application. It is not the case of any party that there was any transfer of the lands which was invalid by virtue of the provisions of the Act. The tenants alleged that the first respondent was in wrongful or unauthorised possession of the lands previously occupied by them.But in order that the jurisdiction of the Collector to hold a summary enquiry and pass the order complained of may be attracted, it was further necessary to establish that under Cl. (b) of S. 43 (1) the person in wrongful or unauthorised possession was not entitled to the use and occupation of the lands under the provisions of the Act.Council for the State of Punjab is unable to invite our attention to any provision which renders the first respondent disentitled by virtue of the provisions of the Act to the use and occupation of the lands. Section 43(1) (b) has, therefore, no application. The condition precedent to the investment of jurisdiction in the Collector being absent, the revenue authorities had no power to pass the order in ejectment which they purported to pass. 4. We must point out that the proceedings of the Collector are judicial in character. The trial is summary, but the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction as the Commissioner assumed, but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment. When the condition precedent to the exercise of jurisdiction does not exist, the Collector cannot clothe himself with authority to pass the impugned orders. We also agree with the High Court that in view of the terms of Cl. (b), S. 43 had no retrospective operation. On the view we take, it is unnecessary to consider the argument advanced by Mr. Chagla on behalf of the first respondent that S. 43 has no application to cases in which a dispute relating to tenancy of land arises between the landlord and his tenant. 5. It is also not necessary to consider in this group of appeals whether the proceedings of the Collector were vitiated, because as alleged by the first respondent the collector did not afford sufficient opportunity to lead evidence on the first respondents plea that there had been no wrongful dispossession of the tenants. 6. Mr. Bindra on behalf of the State contended that in any event this Court should not countenance interference with the impugned orders of the revenue authorities, even if erroneous, because those authorities have in passing the orders done substantial justice. Counsel contended that the tenants had been wrongfully deprived of possession of the lands by the use of force by the first respondent and the order passed by the Collector though not strictly warranted by law was not liable to be disturbed by the High Court in exercise of their jurisdiction to issue a writ of certiorari. We are unable to agree with that contention. If the Collector had no jurisdiction except in the special conditions prescribed by Section 43, his order could not be substantiated merely because an other authority may, if the proceedings were before that authority, on the findings recorded, have granted relief to the tenants of restoration to possession of their respective lands. Authorities which are vested with powers-judicial or quasi-judicial - can exercise their power within the limits of their jurisdiction and their actions without jurisdiction cannot be sustained merely because another body or authority, which if lawfully approached, may have jurisdiction to pass the order complained of.
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4. We must point out that the proceedings of the Collector are judicial in character. The trial is summary, but the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction as the Commissioner assumed, but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment. When the condition precedent to the exercise of jurisdiction does not exist, the Collector cannot clothe himself with authority to pass the impugned orders. We also agree with the High Court that in view of the terms of Cl. (b), S. 43 had no retrospective operation. On the view we take, it is unnecessary to consider the argument advanced by Mr. Chagla on behalf of the first respondent that S. 43 has no application to cases in which a dispute relating to tenancy of land arises between the landlord and his tenant6. Mr. Bindra on behalf of the State contended that in any event this Court should not countenance interference with the impugned orders of the revenue authorities, even if erroneous, because those authorities have in passing the orders done substantial justice. Counsel contended that the tenants had been wrongfully deprived of possession of the lands by the use of force by the first respondent and the order passed by the Collector though not strictly warranted by law was not liable to be disturbed by the High Court in exercise of their jurisdiction to issue a writ of certiorari. We are unable to agree with that contention. If the Collector had no jurisdiction except in the special conditions prescribed by Section 43, his order could not be substantiated merely because an other authority may, if the proceedings were before that authority, on the findings recorded, have granted relief to the tenants of restoration to possession of their respective lands. Authorities which are vested with powers-judicial or quasi-judicial - can exercise their power within the limits of their jurisdiction and their actions without jurisdiction cannot be sustained merely because another body or authority, which if lawfully approached, may have jurisdiction to pass the order complained of.
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Ram Dhan Lal And Others Vs. Radhe Sham And Others | by the learned counsel for the applts. that such custom is unreasonable and should for that reason be held to be unenforceable in law.It cannot be denied that the appln. of the deep stream rule might work injustice in certain cases as the gain or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but, on the other hand, the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strife and contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law :Vide Cokeon Littleton 62 (a). It is sufficient if no good legal reason can be assigned against it. Prevention of quarrels and disputes between contiguous villages and estates is certainly an object beneficial to the community and judged by this test, the custom ofDhar Dhuracannot be held to be unreasonable.It may be pointed out in this connection that in some shape or other this deep stream rule has been recognised in India from very early times as convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost identical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights :VideDoss on the Law of Riparian Rights p. 178. The first contention of the applt., therefore cannot be accepted.10. The other contention put forward by the applt. raises the question as to whether the custom ofDhar Dhuracould have any appln. to the facts of the present case where the river is not flowing within the villages at all. On this point, we think that the correct view has been taken by the learned Subordinate Judge and the reasons and the conclusion of the H. C. upon it do not appear to us to be sound.11. If, as the custom ofDhar Dhuraimplies, the deep stream of a river irrespective of the changes in its course, is to be regarded as a fixed boundary line between two or more villages, it is absolutely necessary that the main stream of the river must flow within the limits of these villages. It is only for the purpose of determining the boundary between certain villages and estates that the custom ofDhar Dhuracan be invoked; and unless the river actually divides the villages or estates, there can be no question of its being regarded as a boundary line between them and in such circumstances the deep stream rule cannot possibly have any meaning.A custom which defeats or has no relevancy to the very object for which it came into existence cannot under any circumstance be regarded as valid. We are not satisfied also that the evidence in the record establishes the existence of such custom at all. S. 2, Regulation XI of 1825, makes it perfectly clear that a custom contrary to the provisions of the Regulation would be enforceable only when it is a custom for determining the rights of proprietor of two or more contiguous estates divided by the river.When the river ceases to divide the estates, the rights of the riparian proprietors can be determined only in accordance with the provisions made in the Regulation itself.It has been argued by Mr. Banerjee, appearing for the resps. that assuming that the custom ofDhar Dhuracould not be invoked by the defts. when the river had receded beyond the limits of mouza Sikha, still the pltf. in order to succeed in the suit must have to show how he acquired title to the tract of land lying to the north and west of the "dabri" or the old water course, which is the subject-matter of the claim in the present suit. The answer to this argument would clearly be that when the main current of the river was at the place where the "dabri" stands at present the entire stretch of land lying to the north-west of the main stream came to the pltf. under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted to the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhurawould no longer govern the rights of the parties and the titles to the plot of land, which is the subject matter of dispute, must be determined in accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land have remained intact, the pltf. would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 cl. (2) of Regulation XI of 1825. In our opinion, therefore, the decision of the learned Judges of the H. C. on this point is not correct and should be reversed.12. Mr. Banerjee argues further that even if his clients cannot claim the disputed land under the custom of Dhar Dhuraso long as the river flows outside the limits of the village, their rights under the custom should revive as soon as the river comes down within the limits of mouza Sikha. This position certainly has got to be admitted but as we are concerned with the state of affairs existing at the date of the institution of the suit and there is no evidence on the record as to the position of the river at the present moment, the pltf. will be entitled to a decree in the form as it was given by the trial Judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhar Dhurawhich the defts. may invoke if and when the proper occasion arises. | 1[ds]8. As regards the first point, it seems to us that on the facts admitted and proved, it is impossible for us to take a view different from that taken by both the Cts. below. The meaning of the customDhar Dhurais that the deep stream or Channel of a river is to be regarded, irrespective of its changes, as the constant boundary between two or more villages. Such custom is expressly recognised in S. 2, Regulation XI of 1825 which lays downany clear and definite usage .. . .. may have been immemorially established for determining the rights of the proprietors of law or more contiguous estates divided by river (such as that the main channel of the river dividing the estates shall be the constant boundary between them whatever changes may take place in the course of the river by encroachment on one side and accession on the other), the usage so established shall govern the decision of all claims and disputes relating to alluvial lands between the parties.Ex. D 1 is a judgment of the Subordinate Judge of Bareilly dated 29- 7-1907 and it was passed in a suit instituted by the proprietor of mouza Sikha against the owner of Jhawa Nagla. The question raised was whether a quantity of land appertaining to mouza Sikha which was detached by a sudden change in the course of the river and thrown on the Jhawa Nagla village could be claimed by the pltf. The answer was given in the negative, and the decision was based entirely upon the custom ofDhar Dhurawhich was held to be applicable even when the change was sudden. These documents furnish clear proof of the custom being held applicable to cases of the river suddenly altering its course and cutting off blocks of land from villages situated on one or other side of its channel. In the face of this clear and definite proof of the usage, we are unable to say that the decision at the Cts. below on this point iscannot be denied that the appln. of the deep stream rule might work injustice in certain cases as the gain or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but, on the other hand, the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strife and contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law :Vide Cokeon Littleton 62 (a). It is sufficient if no good legal reason can be assigned against it. Prevention of quarrels and disputes between contiguous villages and estates is certainly an object beneficial to the community and judged by this test, the custom ofDhar Dhuracannot be held to be unreasonable.It may be pointed out in this connection that in some shape or other this deep stream rule has been recognised in India from very early times as convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost identical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights :VideDoss on the Law of Riparian Rights p. 178. The first contention of the applt., therefore cannot beanswer to this argument would clearly be that when the main current of the river was at the place where the "dabri" stands at present the entire stretch of land lying to the north-west of the main stream came to the pltf. under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted to the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhurawould no longer govern the rights of the parties and the titles to the plot of land, which is the subject matter of dispute, must be determined in accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land have remained intact, the pltf. would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 cl. (2) of Regulation XI ofIn our opinion, therefore, the decision of the learned Judges of the H. C. on this point is not correct and should beposition certainly has got to be admitted but as we are concerned with the state of affairs existing at the date of the institution of the suit and there is no evidence on the record as to the position of the river at the present moment, the pltf. will be entitled to a decree in the form as it was given by the trial Judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhar Dhurawhich the defts. may invoke if and when the proper occasion arises. | 1 | 3,454 | 929 | ### Instruction:
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by the learned counsel for the applts. that such custom is unreasonable and should for that reason be held to be unenforceable in law.It cannot be denied that the appln. of the deep stream rule might work injustice in certain cases as the gain or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but, on the other hand, the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strife and contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law :Vide Cokeon Littleton 62 (a). It is sufficient if no good legal reason can be assigned against it. Prevention of quarrels and disputes between contiguous villages and estates is certainly an object beneficial to the community and judged by this test, the custom ofDhar Dhuracannot be held to be unreasonable.It may be pointed out in this connection that in some shape or other this deep stream rule has been recognised in India from very early times as convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost identical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights :VideDoss on the Law of Riparian Rights p. 178. The first contention of the applt., therefore cannot be accepted.10. The other contention put forward by the applt. raises the question as to whether the custom ofDhar Dhuracould have any appln. to the facts of the present case where the river is not flowing within the villages at all. On this point, we think that the correct view has been taken by the learned Subordinate Judge and the reasons and the conclusion of the H. C. upon it do not appear to us to be sound.11. If, as the custom ofDhar Dhuraimplies, the deep stream of a river irrespective of the changes in its course, is to be regarded as a fixed boundary line between two or more villages, it is absolutely necessary that the main stream of the river must flow within the limits of these villages. It is only for the purpose of determining the boundary between certain villages and estates that the custom ofDhar Dhuracan be invoked; and unless the river actually divides the villages or estates, there can be no question of its being regarded as a boundary line between them and in such circumstances the deep stream rule cannot possibly have any meaning.A custom which defeats or has no relevancy to the very object for which it came into existence cannot under any circumstance be regarded as valid. We are not satisfied also that the evidence in the record establishes the existence of such custom at all. S. 2, Regulation XI of 1825, makes it perfectly clear that a custom contrary to the provisions of the Regulation would be enforceable only when it is a custom for determining the rights of proprietor of two or more contiguous estates divided by the river.When the river ceases to divide the estates, the rights of the riparian proprietors can be determined only in accordance with the provisions made in the Regulation itself.It has been argued by Mr. Banerjee, appearing for the resps. that assuming that the custom ofDhar Dhuracould not be invoked by the defts. when the river had receded beyond the limits of mouza Sikha, still the pltf. in order to succeed in the suit must have to show how he acquired title to the tract of land lying to the north and west of the "dabri" or the old water course, which is the subject-matter of the claim in the present suit. The answer to this argument would clearly be that when the main current of the river was at the place where the "dabri" stands at present the entire stretch of land lying to the north-west of the main stream came to the pltf. under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted to the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhurawould no longer govern the rights of the parties and the titles to the plot of land, which is the subject matter of dispute, must be determined in accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land have remained intact, the pltf. would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 cl. (2) of Regulation XI of 1825. In our opinion, therefore, the decision of the learned Judges of the H. C. on this point is not correct and should be reversed.12. Mr. Banerjee argues further that even if his clients cannot claim the disputed land under the custom of Dhar Dhuraso long as the river flows outside the limits of the village, their rights under the custom should revive as soon as the river comes down within the limits of mouza Sikha. This position certainly has got to be admitted but as we are concerned with the state of affairs existing at the date of the institution of the suit and there is no evidence on the record as to the position of the river at the present moment, the pltf. will be entitled to a decree in the form as it was given by the trial Judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhar Dhurawhich the defts. may invoke if and when the proper occasion arises.
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### Explanation:
8. As regards the first point, it seems to us that on the facts admitted and proved, it is impossible for us to take a view different from that taken by both the Cts. below. The meaning of the customDhar Dhurais that the deep stream or Channel of a river is to be regarded, irrespective of its changes, as the constant boundary between two or more villages. Such custom is expressly recognised in S. 2, Regulation XI of 1825 which lays downany clear and definite usage .. . .. may have been immemorially established for determining the rights of the proprietors of law or more contiguous estates divided by river (such as that the main channel of the river dividing the estates shall be the constant boundary between them whatever changes may take place in the course of the river by encroachment on one side and accession on the other), the usage so established shall govern the decision of all claims and disputes relating to alluvial lands between the parties.Ex. D 1 is a judgment of the Subordinate Judge of Bareilly dated 29- 7-1907 and it was passed in a suit instituted by the proprietor of mouza Sikha against the owner of Jhawa Nagla. The question raised was whether a quantity of land appertaining to mouza Sikha which was detached by a sudden change in the course of the river and thrown on the Jhawa Nagla village could be claimed by the pltf. The answer was given in the negative, and the decision was based entirely upon the custom ofDhar Dhurawhich was held to be applicable even when the change was sudden. These documents furnish clear proof of the custom being held applicable to cases of the river suddenly altering its course and cutting off blocks of land from villages situated on one or other side of its channel. In the face of this clear and definite proof of the usage, we are unable to say that the decision at the Cts. below on this point iscannot be denied that the appln. of the deep stream rule might work injustice in certain cases as the gain or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but, on the other hand, the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strife and contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law :Vide Cokeon Littleton 62 (a). It is sufficient if no good legal reason can be assigned against it. Prevention of quarrels and disputes between contiguous villages and estates is certainly an object beneficial to the community and judged by this test, the custom ofDhar Dhuracannot be held to be unreasonable.It may be pointed out in this connection that in some shape or other this deep stream rule has been recognised in India from very early times as convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost identical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights :VideDoss on the Law of Riparian Rights p. 178. The first contention of the applt., therefore cannot beanswer to this argument would clearly be that when the main current of the river was at the place where the "dabri" stands at present the entire stretch of land lying to the north-west of the main stream came to the pltf. under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted to the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhurawould no longer govern the rights of the parties and the titles to the plot of land, which is the subject matter of dispute, must be determined in accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land have remained intact, the pltf. would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 cl. (2) of Regulation XI ofIn our opinion, therefore, the decision of the learned Judges of the H. C. on this point is not correct and should beposition certainly has got to be admitted but as we are concerned with the state of affairs existing at the date of the institution of the suit and there is no evidence on the record as to the position of the river at the present moment, the pltf. will be entitled to a decree in the form as it was given by the trial Judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhar Dhurawhich the defts. may invoke if and when the proper occasion arises.
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National Insurance Company Ltd Vs. M/s. Hareshwar Enterprises (P) Ltd. & Ors | the fire incident. Even going by the contention put forth, it is noted that the loss caused by destruction of the plant and machinery in the fire incident is not much of an issue. The dispute raised insofar as the loss caused to the raw- materials/stock is by contending that the purchase of stock during the months of August, September and October 1999 is shown excessive as compared to the stock position from April to July 1999. In that circumstance, in the facts and circumstances herein whether the investigation report was an indispensable document or as to whether the survey report is exhaustive enough to arrive at a conclusion on that aspect is the issue. 14. Having noted the said decisions, we are of the opinion that the same cannot alter the position in the instant case. On the proposition of law that the surveyors report cannot be considered as a sacrosanct document and that if there is any contrary evidence including investigation report, opportunity should be available to produce it as rebuttal material, we concur. However, the issue to be noted is as to whether the surveyors report in the instant case adverts to the consideration of stock position in an appropriate manner and in that circumstance whether an investigation report which is based on investigation that was started belatedly should take the centre stage. The fact remains that the surveyors report is the basic document which has statutory recognition and can be made the basis if it inspires the confidence of the adjudicating forum and if such forum does not find the need to place reliance on any other material, in the facts and circumstance arising in the case. If in that light, the surveyors report, on which reliance has been placed by the NCDRC is taken note insofar as the assessment relating to the loss due to destruction of stock, the consideration of the same has been adverted in clause 8.1.1 and the stock position as declared to the bank has been referred to in clause 8.1.3. The learned counsel for the appellant as also the learned counsel for the respondents has made detailed reference and taken us through details contained in the report. 15. The consideration made by the surveyors to ascertain the correctness of the details relating to the stock indicates that reference is made to the value of the stock declared to the bank; value of the stock as per audited manufacturing account and balance sheet for the year ended 31.03.1999; the explanation offered for the purchase made during the months of August 1999 to October 1999. In that regard, the surveyors have also visited the source from which the LDPE was procured during September 1999 to 04.11.1999. It is on making such verification and inquiries, the surveyors arrived at the conclusion as follows: - 8. 1. 8 Though the purchases and sales were found to be in order as per records, we could not accept the total quantity of 73585 kgs claimed by the Insured. Opening stock considered for arriving at this balance is higher as compared to quantity declared to bank. For assessing the quantity we have taken Stock quantity as on 30.04. 99 as per Bank declaration and then made addition/ deduction for purchase & sale quantity during the period 1.5.99 to 6.11.99. Accordingly the quantity of stock as on date of loss worked out as follows: CHART 8.1.9 We have valued the stock as per the latest purchase rate viz. At market value. The last purchases made by Insured prior to loss was on 4. 11. 99. The rate including Octroi is Rs.68.238 per kg. The rate matches with the selling price fixed by IPCL. Further the entire quantity was considered to be raw material avoiding any addition of Insureds own manufacturing cost. 8 .1.10 Salvage : There was small quantity of remnants of the burnt stock, in lump/me ted form. Considering the limited quantity which could be extracted and its scrap value we have deducted 1% as salvage value. 8.1.11 The Loss Assessed for Stock is as follows Cost of 44078.620 Kgs. of LDPE @ Rs. 68.238 per kg. Rs. 30,07,885 Less : Salvage value 1% Rs. 30,079---------------Loss Assessed Rs. 29,77,806 16. Thus, a perusal of the surveyors report would indicate that the same is not perfunctory but has referred to all aspects, discarded what was not reliable and the assessment has been made thereafter. In that background, as noted, the fire incident had occurred on 06.11.1999 and the surveyors had visited the site on 09.01.1999 itself and the interim as also the final report were submitted on 23.03.2000 and 13.03.2001 to the insurer after due deliberations. The insurer did not take any steps immediately but after much delay appointed the investigator on 22.06.2001 and had not concluded the said process though the respondent No.1 had made repeated request. The insured had approached the NCDRC and it is in the said proceedings, for the first time the insurer seeks to rely on the investigators report. Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyors report by the NCDRC without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by the NCDRC does not call for interference. 17. One other aspect of matter which arises for consideration herein is with regard to the rate of interest. The learned counsel for the appellant contended that the interest rate at 12% per annum is excessive. The learned counsel for the respondent, however, contended that there was delay in payment of the amount payable to the respondent No.1 which was necessary to be compensated appropriately and the NCDRC was justified in that regard. | 1[ds]6. Having noted the contention, on the provision as contained, there is no ambiguity whatsoever. However, what is required to be taken note is that the provision indicates that the complaint is required to be filed within two years from the date on which the cause of action has arisen.7. In contradistinction, in the instant case as noted the fire incident had occurred on 06.11.1999. The appellant had informed the insurer on 07.11.1999, where after the joint surveyors were appointed and on verification had submitted their final report on 13.03.2001. Despite said report, the insurer through their letter dated 22.06.2001 had appointed an investigator but did not proceed to either accept the claim or repudiate the same.8. If in the above context the fact situation herein is noticed, though the fire incident occurred on 06.11.1999, the same merely provided the cause of action for the first time to make the claim but the same did not remain static at that point. On the other hand, the process of joint survey though had concluded with its final report on 13.03.2001, the letter dated 22.06.2001 addressed by the insurer to the respondent No.1 regarding appointment of the investigator had created a fresh cause of action and kept the matter oscillating. Thereafter, the matter did not rest at that but there was repeated action being taken by the investigators seeking for details. When the same did not conclude in an appropriate manner, the respondent No.1 (Insured) got issued a legal notice dated 05.01.2003 to which reply was issued, when in fact the repudiation was gathered and the complaint was filed. Even if the date on which the process of intimation of appointment of the investigator through the letter dated 22.06.2001, received by the respondent No.1 is taken into consideration, from that date also the complaint filed on 26.03.2003 is within time. There was no need for the NCDRC to pass any separate order at the outset to hold the claim to be within limitation and then proceed when it is clear on the fact of it. As such the consideration of the complaint on merits by the NCDRC was justified. The contention therefore urged by Mr. Vishnu Mehra, learned counsel on that ground is accordingly rejected.9. On the merits of the claim, a perusal of the impugned order dated 27.03.2009 passed by the NCDRC indicates that the NCDRC has made detailed reference to the report submitted by the joint surveyors, dated 13.03.2001 and has ultimately allowed the claim, in part. In the surveyor report dated 13.03.2001 consideration was made to two parts; firstly, the assessment of loss relating to the stock of LDPE plastic, powder, granules, tubings and films as contained in clause 8.1 of the report. Next, the loss caused due to the destruction of plant and machinery is assessed in clause 8.2 and the sum of Rs.46,60,459/- being the depreciated value has been awarded for loss of plant and machinery. In respect of the said claim the respondent No.2 (Maharashtra State Financial Corporation) is interested. In that regard, the learned counsel for the appellant, as also the learned counsel for respondent No. 1 and 2 are agreed that there is no serious dispute with regard to the consideration made either by the surveyors or the NCDRC on the aspect of plant and machinery. The same having not been a major issue before the NCDRC, need not be gone into in these proceedings.11. In the said decision, it is no doubt held that though the assessment of loss by an approved surveyor is a prerequisite for payment or settlement of the claim, the surveyor report is not the last and final word. It is not that sacrosanct that it cannot be departed from and it is not conclusive. The approved surveyors report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. On the said proposition, we are certain that there can be no quarrel. The surveyors report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyors report.In the facts arising in the said case the insured was seeking to rely on the surveyors report to bind the insurer in view of the provisions contained in Section 64-UM (c) of the Insurance Act, 1938. The Insurer had however sought to rely on the investigation report. The State Commission refused to look into report of the private investigator. In that circumstance, this court was of the view that the State Commission should have given an opportunity to the insurer to prove the investigation report. In the said case, the very nature of the fire incident was in dispute from the very inception. The claimant had contended that the fire was caused by a short circuit, which was seriously disputed by the insurer and an investigation in that regard had been held. It is in that light, a conclusion was to be reached by the forum adjudicating the claim as to whether any fraud was committed in making the claim with reference to the very nature of the incident. In that circumstance, even though at the first instance, there was an investigation held by the police, the private investigation held by the insurer would have been relevant to decide the question. As such, in the said circumstance it was imperative that the investigators report was to be considered threadbare and a decision ought to have been arrived at.13. On the other hand, in the instant facts there is no serious dispute with regard to the fire incident. Even going by the contention put forth, it is noted that the loss caused by destruction of the plant and machinery in the fire incident is not much of an issue. The dispute raised insofar as the loss caused to the raw- materials/stock is by contending that the purchase of stock during the months of August, September and October 1999 is shown excessive as compared to the stock position from April to July 1999. In that circumstance, in the facts and circumstances herein whether the investigation report was an indispensable document or as to whether the survey report is exhaustive enough to arrive at a conclusion on that aspect is the issue.14. Having noted the said decisions, we are of the opinion that the same cannot alter the position in the instant case. On the proposition of law that the surveyors report cannot be considered as a sacrosanct document and that if there is any contrary evidence including investigation report, opportunity should be available to produce it as rebuttal material, we concur. However, the issue to be noted is as to whether the surveyors report in the instant case adverts to the consideration of stock position in an appropriate manner and in that circumstance whether an investigation report which is based on investigation that was started belatedly should take the centre stage. The fact remains that the surveyors report is the basic document which has statutory recognition and can be made the basis if it inspires the confidence of the adjudicating forum and if such forum does not find the need to place reliance on any other material, in the facts and circumstance arising in the case. If in that light, the surveyors report, on which reliance has been placed by the NCDRC is taken note insofar as the assessment relating to the loss due to destruction of stock, the consideration of the same has been adverted in clause 8.1.1 and the stock position as declared to the bank has been referred to in clause 8.1.3. The learned counsel for the appellant as also the learned counsel for the respondents has made detailed reference and taken us through details contained in the report.15. The consideration made by the surveyors to ascertain the correctness of the details relating to the stock indicates that reference is made to the value of the stock declared to the bank; value of the stock as per audited manufacturing account and balance sheet for the year ended 31.03.1999; the explanation offered for the purchase made during the months of August 1999 to October 1999. In that regard, the surveyors have also visited the source from which the LDPE was procured during September 1999 to 04.11.1999.16. Thus, a perusal of the surveyors report would indicate that the same is not perfunctory but has referred to all aspects, discarded what was not reliable and the assessment has been made thereafter. In that background, as noted, the fire incident had occurred on 06.11.1999 and the surveyors had visited the site on 09.01.1999 itself and the interim as also the final report were submitted on 23.03.2000 and 13.03.2001 to the insurer after due deliberations. The insurer did not take any steps immediately but after much delay appointed the investigator on 22.06.2001 and had not concluded the said process though the respondent No.1 had made repeated request. The insured had approached the NCDRC and it is in the said proceedings, for the first time the insurer seeks to rely on the investigators report. Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyors report by the NCDRC without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by the NCDRC does not call for interference. | 1 | 4,049 | 1,755 | ### Instruction:
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the fire incident. Even going by the contention put forth, it is noted that the loss caused by destruction of the plant and machinery in the fire incident is not much of an issue. The dispute raised insofar as the loss caused to the raw- materials/stock is by contending that the purchase of stock during the months of August, September and October 1999 is shown excessive as compared to the stock position from April to July 1999. In that circumstance, in the facts and circumstances herein whether the investigation report was an indispensable document or as to whether the survey report is exhaustive enough to arrive at a conclusion on that aspect is the issue. 14. Having noted the said decisions, we are of the opinion that the same cannot alter the position in the instant case. On the proposition of law that the surveyors report cannot be considered as a sacrosanct document and that if there is any contrary evidence including investigation report, opportunity should be available to produce it as rebuttal material, we concur. However, the issue to be noted is as to whether the surveyors report in the instant case adverts to the consideration of stock position in an appropriate manner and in that circumstance whether an investigation report which is based on investigation that was started belatedly should take the centre stage. The fact remains that the surveyors report is the basic document which has statutory recognition and can be made the basis if it inspires the confidence of the adjudicating forum and if such forum does not find the need to place reliance on any other material, in the facts and circumstance arising in the case. If in that light, the surveyors report, on which reliance has been placed by the NCDRC is taken note insofar as the assessment relating to the loss due to destruction of stock, the consideration of the same has been adverted in clause 8.1.1 and the stock position as declared to the bank has been referred to in clause 8.1.3. The learned counsel for the appellant as also the learned counsel for the respondents has made detailed reference and taken us through details contained in the report. 15. The consideration made by the surveyors to ascertain the correctness of the details relating to the stock indicates that reference is made to the value of the stock declared to the bank; value of the stock as per audited manufacturing account and balance sheet for the year ended 31.03.1999; the explanation offered for the purchase made during the months of August 1999 to October 1999. In that regard, the surveyors have also visited the source from which the LDPE was procured during September 1999 to 04.11.1999. It is on making such verification and inquiries, the surveyors arrived at the conclusion as follows: - 8. 1. 8 Though the purchases and sales were found to be in order as per records, we could not accept the total quantity of 73585 kgs claimed by the Insured. Opening stock considered for arriving at this balance is higher as compared to quantity declared to bank. For assessing the quantity we have taken Stock quantity as on 30.04. 99 as per Bank declaration and then made addition/ deduction for purchase & sale quantity during the period 1.5.99 to 6.11.99. Accordingly the quantity of stock as on date of loss worked out as follows: CHART 8.1.9 We have valued the stock as per the latest purchase rate viz. At market value. The last purchases made by Insured prior to loss was on 4. 11. 99. The rate including Octroi is Rs.68.238 per kg. The rate matches with the selling price fixed by IPCL. Further the entire quantity was considered to be raw material avoiding any addition of Insureds own manufacturing cost. 8 .1.10 Salvage : There was small quantity of remnants of the burnt stock, in lump/me ted form. Considering the limited quantity which could be extracted and its scrap value we have deducted 1% as salvage value. 8.1.11 The Loss Assessed for Stock is as follows Cost of 44078.620 Kgs. of LDPE @ Rs. 68.238 per kg. Rs. 30,07,885 Less : Salvage value 1% Rs. 30,079---------------Loss Assessed Rs. 29,77,806 16. Thus, a perusal of the surveyors report would indicate that the same is not perfunctory but has referred to all aspects, discarded what was not reliable and the assessment has been made thereafter. In that background, as noted, the fire incident had occurred on 06.11.1999 and the surveyors had visited the site on 09.01.1999 itself and the interim as also the final report were submitted on 23.03.2000 and 13.03.2001 to the insurer after due deliberations. The insurer did not take any steps immediately but after much delay appointed the investigator on 22.06.2001 and had not concluded the said process though the respondent No.1 had made repeated request. The insured had approached the NCDRC and it is in the said proceedings, for the first time the insurer seeks to rely on the investigators report. Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyors report by the NCDRC without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by the NCDRC does not call for interference. 17. One other aspect of matter which arises for consideration herein is with regard to the rate of interest. The learned counsel for the appellant contended that the interest rate at 12% per annum is excessive. The learned counsel for the respondent, however, contended that there was delay in payment of the amount payable to the respondent No.1 which was necessary to be compensated appropriately and the NCDRC was justified in that regard.
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not conclusive. The approved surveyors report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. On the said proposition, we are certain that there can be no quarrel. The surveyors report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyors report.In the facts arising in the said case the insured was seeking to rely on the surveyors report to bind the insurer in view of the provisions contained in Section 64-UM (c) of the Insurance Act, 1938. The Insurer had however sought to rely on the investigation report. The State Commission refused to look into report of the private investigator. In that circumstance, this court was of the view that the State Commission should have given an opportunity to the insurer to prove the investigation report. In the said case, the very nature of the fire incident was in dispute from the very inception. The claimant had contended that the fire was caused by a short circuit, which was seriously disputed by the insurer and an investigation in that regard had been held. It is in that light, a conclusion was to be reached by the forum adjudicating the claim as to whether any fraud was committed in making the claim with reference to the very nature of the incident. In that circumstance, even though at the first instance, there was an investigation held by the police, the private investigation held by the insurer would have been relevant to decide the question. As such, in the said circumstance it was imperative that the investigators report was to be considered threadbare and a decision ought to have been arrived at.13. On the other hand, in the instant facts there is no serious dispute with regard to the fire incident. Even going by the contention put forth, it is noted that the loss caused by destruction of the plant and machinery in the fire incident is not much of an issue. The dispute raised insofar as the loss caused to the raw- materials/stock is by contending that the purchase of stock during the months of August, September and October 1999 is shown excessive as compared to the stock position from April to July 1999. In that circumstance, in the facts and circumstances herein whether the investigation report was an indispensable document or as to whether the survey report is exhaustive enough to arrive at a conclusion on that aspect is the issue.14. Having noted the said decisions, we are of the opinion that the same cannot alter the position in the instant case. On the proposition of law that the surveyors report cannot be considered as a sacrosanct document and that if there is any contrary evidence including investigation report, opportunity should be available to produce it as rebuttal material, we concur. However, the issue to be noted is as to whether the surveyors report in the instant case adverts to the consideration of stock position in an appropriate manner and in that circumstance whether an investigation report which is based on investigation that was started belatedly should take the centre stage. The fact remains that the surveyors report is the basic document which has statutory recognition and can be made the basis if it inspires the confidence of the adjudicating forum and if such forum does not find the need to place reliance on any other material, in the facts and circumstance arising in the case. If in that light, the surveyors report, on which reliance has been placed by the NCDRC is taken note insofar as the assessment relating to the loss due to destruction of stock, the consideration of the same has been adverted in clause 8.1.1 and the stock position as declared to the bank has been referred to in clause 8.1.3. The learned counsel for the appellant as also the learned counsel for the respondents has made detailed reference and taken us through details contained in the report.15. The consideration made by the surveyors to ascertain the correctness of the details relating to the stock indicates that reference is made to the value of the stock declared to the bank; value of the stock as per audited manufacturing account and balance sheet for the year ended 31.03.1999; the explanation offered for the purchase made during the months of August 1999 to October 1999. In that regard, the surveyors have also visited the source from which the LDPE was procured during September 1999 to 04.11.1999.16. Thus, a perusal of the surveyors report would indicate that the same is not perfunctory but has referred to all aspects, discarded what was not reliable and the assessment has been made thereafter. In that background, as noted, the fire incident had occurred on 06.11.1999 and the surveyors had visited the site on 09.01.1999 itself and the interim as also the final report were submitted on 23.03.2000 and 13.03.2001 to the insurer after due deliberations. The insurer did not take any steps immediately but after much delay appointed the investigator on 22.06.2001 and had not concluded the said process though the respondent No.1 had made repeated request. The insured had approached the NCDRC and it is in the said proceedings, for the first time the insurer seeks to rely on the investigators report. Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance placed on the surveyors report by the NCDRC without giving credence to the investigation report in the facts and circumstances of the instant case cannot be faulted. In that view, the conclusion reached on this aspect by the NCDRC does not call for interference.
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Sita Ram Jhunjhunawala Vs. Bombay Bullion Association Ltd. & Ors | one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards."We consider these observations apposite and hold that where, a payment was made by a cheque drawn on an account with the Bullion Exchange sub-branch and the amount represented by that cheque was transferred to the Clearing House Account of the Association it is virtually a payment in cash, though in form a payment by cheque.15-18. The next transaction to which objection was taken was a payment into the Bullion Hall Sub-branch of a sum of Rupees 4,65,000 by one Sri Bansilal and Sons. The evidence was that the cheque was drawn not on his account on the Bullion Hall Sub-branch of the Bank of Baroda but with the branch of the Bank at the Fort, Bombay. The evidence which the Court accepted was that on the presentation of the cheque the tax ascertained that the constituent had enough funds in the bank for the cheque to be cleared and accepted it and credited the same to the account of the Bullion Exchange Association. The objection raised to the receipt of this payment was also founded on the cheque not being certified as good for payment. It will be noticed that the only point of difference between this cheque and the cheques which were drawn on accounts of members with the Bullion Hall branch which we have dealt with just now is, that the cheque for Rs. 4,65,000 was not drawn on the drawers account with the Bullion Hall Sub-branch but on an account in the same bank at the Fort Branch. For the purpose of considering this point it is not necessary to enter on any examination of the question as to what extent the two branches of the same bank are separate entities. There is no doubt that a customer cannot claim to draw cheques except on the branch where his moneys are deposited and on the account in respect of which the cheque is issued. But that is not what is in controversy in the present case. Here a cheque drawn on the Fort Branch is paid into the Bullion Hall Sub-branch to the credit of the Association. The Bullion Hall Sub-branch of the bank accepts that cheque and credits it to the Association after ascertaining that the drawer of the cheque has enough funds at the Fort branch for meeting that cheque. The only question is whether the payment could be treated as by a cheque which is certified as good for payment. We consider that what we have stated earlier as to the position in regard to a cheque drawn on an account in the same branch would also apply to the present case and that a certificate of the banker that is referred to in the bye-law is a certificate of a bank different from that into which the cheque is being paid. Even if there be any doubt in this matter we are satisfied that when once the stall at the Bullion Hall Sub-branch ascertained that the cheque was backed by sufficient funds to the credit of the customer in the account on which it is drawn, it satisfies the requirements of a cheque certified as good for payment within bye-law 137-B. The learned Judges of the High Court, therefore, rightly held that this payment was not outside the payments permitted by the said bye-law.19. The last of the cases concerns a payment by one Jethalal Sangji Shah of a cheque for Rs. 1,16,250. The, cheque was made in favour of the Bank of India Ltd. not certified good for payment and was paid into the Bullion Hall Sub-branch. The Clearing House received this cheque from Jethalal Sangji Shah after obtaining a declaration from him that he had enough credit in his account with the Bank of India for meeting that cheque. It was stated that the Directors of the Association were approached by the Bank as to whether this cheque could be received in payment and that it was on their advice that a declaration in the form specified was taken from the member and it was only thereafter that the payment was accepted as conforming to by law 137-B. Mr. Purshottam submitted that this payment could certainly not be within bye-law 137-B, and we consider that learned Counsel is right. This, however, does not help him because it concerns the price for 25 bars and, having regard to the quantity of silver with which we are concerned, Mr. Purushottam could not but concede that even if the payment by this constituent was irregular it would not affect the validity of the purchase at the risk of the appellant. We thus reach the conclusion that except the last payment which was not quite regular but whose irregularity is not material, all the other payments were substantially, if not literally, in accordance with the requirements of bye-law 137-B and in consequence the purchase made by the Directors at the risk of the appellant was legal and justified under the by-laws.20. Before concluding it is necessary to advert to the fact that both before the learned trial Judge as well as before the Division Bench a detailed analysis was made of the several payments made by about 17 members of the Association with a view to establish that those payments were not, even if they were made on the 3rd, in accordance with bye-law 137-B. The learned Judges considered the several objections which were formulated to the validity of these payments and after discussing some of the details of the individual cases which were placed before the Court, recorded their finding that the payments satisfied the requirements of the relevant bye-law. In view of the arguments addressed to us we have not examined in detail each one of the objections but have dealt only with those specifically urged before us and the tenability in general of the principles on which these objections were based. | 0[ds]8. An analysis of theB would show that a member whose Clearance Sheet showed outstanding purchases had, on the Vaida day, to file his Clerance Sheet and to make a payment into the Clearing House of an amount sufficient to pay for all his outstanding purchases at the rate fixed by the Association. This payment had to be made along with the Clearance Sheets and had to be in one of four forms : (a) a cheque certified good for payment, or (b) a Demand Draft on a bank, or (c) a banksor (d) cash. The question raised in this appeal relates to whether certain of the purchasers had made payments into the Clearing House of the amounts payable by them in any of the permitted modes. Before proceeding further we might add that the bank of Baroda which was the Clearing House admitted that the amounts required to be paid by the severalhad been received by it on the 3rd and the total amounts represented by these payments were credited to the Association. Before setting out the matters in controversy as regards the form of payment adopted by certain purchasers under, it is necessary to premise the narrative by a few facts. As already stated the Bank of Baroda Ltd. had been appointed as the Clearing House of the Association under120 in or about 1949 and had been functioning as such ever since. To facilitate payments by and between members the Bank had opened a special branch called the Bullion Hallin the premises of the Association itself.174(3) required every member to open an account in the Bank, so that it might be convenient to pay or draw cheques for effecting clearance. All the members had, in pursuance of and in obedience to thishis was answered by the Division Bench by pointing out that there was nothing illegal in the bank functioning for the purpose of the members of the Clearing House afterp.m. that day. There was evidence before the Court that the ledgers and other books of account in the bank were available for being looked into to ascertain whether a members account had sufficient funds to meet the cheques which had been drawn. There was also evidence that the state of the members account was ascertained before the triplicate form was accepted by the bank and the two left side foils passed on to the depositing member for being handed over to the Clearing House and, as we stated earlier on the next day the bank submitted a statement acknowledging receipt of the amount of the several cheques and showed their amounts to the credit of the Association. In these circumstances, the learned Judges of the High Court came to the conclusion that there had been a payment as required by theB on February 3, 1953.13. We entirely agree with the High Court as regards the alleged illegality said to have been caused by the Bank accepting cheques after the close of the usual Banking hours. It would be noticed that the extension of the banking hours fromp.m. to 7 p.m. that day was not in contravention of any statute, and whatever the position might have been, if such extension acted to the detriment of a constituent of the bank, in the case on hand it was really for the benefit of the customer. In those circumstances, there was nothing illegal and of course, nothing improper in the banking business having continued so long as the work of the bank as a clearing Housethe analysis that we have made of payments that were made into the clearing House by the purchasers in satisfaction of the amounts due by them for the settlement. Rs. 42,99,400 were by way of cheques drawn on the Bullion Hallof the bank. We have also stated that the staff of the bank to whom the cheques were presented had endorsed on the slips that there were sufficient funds in the account to enable the cheques to be cleared and that it was after this process that thewere presented to the Clearing House with the Clearance Sheets in fulfilment of their obligations under thedo not see any substance in this complaint, nor do we see any relevance of this to the point now in controversy, viz., whether there had been a compliance with. As already pointed out, the vaida was originally fixed for the 2nd of February and if that had stood the amount would have been refundable on the 3rd. It was however, owing to a strike of the Gumashtas of the members that a situation had arisen by reason of which the vaida had to be postponed by a day. Whether, as urged by Mr. Purshottam, that upon the proper construction ofC that when a vaida day is shifted the day fixed for the refund of the margin money also gets shifted or whether it would be payable on the day originally fixed, would, in our opinion, make no difference to the result. Theimposes on obligation on the Association to refund the margin money on the day next after the vaida. On its terms however, if the conditions of cls. (a) and (b) cease to exist, and obviously they ceased to exist in the present case even on the 2nd there is nothing in theto preclude the Association from refunding the margin money. Again, even if the margin money were returned before such refund could be legally enforced, the propriety or impropriety of the refund would have no bearing on the only point for consideration relevant to the question whetherB was complied with or not, viz., whether the accounts of the members were in credit at the time the cheques weredo not, however, propose to go into it for the reason that if, as a matter of fact, the Bank of Baroda as a Banking Institution gave Khimji Poonja and Co. credit for Rs. 2 lakhs that was a matter between those two parties and is not a matter which bears upon the validity of the payment for Rs. 4,65,000 which Khimji made. It is not disputed, or rather it cannot be disputed that the Head Office of the bank credited Khimji Poonja and Co. with the sum of Rs. 2,00,000 and there is evidence as to the intimation of the credit by the Head Office. Of course, the cheque by Khimji on the Chartered Bank was not certified "good for payment" but that was not a payment under. The Head office accepted it and, therefore, nothing follows from their not having insisted on that cheque being certified. The fact remains that the Head Office accepted that cheque; we shall take it in anticipation of being cleared, and as a fact it was cleared the next day. With the propriety of the Head Office of the Bank crediting the constituent with the amount of that cheque before actual realisation neither the Bullion Exchange Branch nor the Association to whose account the sum of Rs. 4,65,000 represented by the cheque drawn in their favour was credited, nor the appellant are concerned. When once the Bank credited that sum into the amount there was enough credit for meeting the cheque of Rs. 4,65,000 which is the only point we are concerneddo not, however, derive any assistance from these decisions on the point now in controversy.The first thing to be noticed about this objection as to certification is that there is no question of certification where a cheque drawn on an account in a branch of a bank is paid into the same branch to the credit of another party who has an account in that branch. Certification is a method adopted when a bank on which a cheque is drawn verifies the customers account on which it is drawn and indicates on the cheque that there are enough funds in his account to meet that cheque. It is obvious that there could be no question of such a certification by a bank of a cheque drawn on an account in a branch when the drawer pays it to the credit of a different account in the same branch. The verification of the account of the constituent for the purpose of ascertaining whether there is enough credit to meet the cheque which precedes a certification takes place at the very moment when the cheque is cleared. There is, therefore, no question then of twocertifying bank on which the cheque is drawn and a clearing bank into which that cheque is paid. In such circumstances, we should consider that the proper view to take of the payment would be that it is really a payment in cash.The Privy Council had, in Arsene A. Larocque v. Hyacinthe Beanchemin, 1897 AC 358, to consider whether the payment a company by receipts given by it on account of the purchase price of the property which they sold was a payment inconsider these observations apposite and hold that where, a payment was made by a cheque drawn on an account with the Bullion Exchangeand the amount represented by that cheque was transferred to the Clearing House Account of the Association it is virtually a payment in cash, though in form a payment byis no doubt that a customer cannot claim to draw cheques except on the branch where his moneys are deposited and on the account in respect of which the cheque is issued. But that is not what is in controversy in the present case. Here a cheque drawn on the Fort Branch is paid into the Bullion Hallto the credit of the Association. The Bullion Hallof the bank accepts that cheque and credits it to the Association after ascertaining that the drawer of the cheque has enough funds at the Fort branch for meeting thatconsider that what we have stated earlier as to the position in regard to a cheque drawn on an account in the same branch would also apply to the present case and that a certificate of the banker that is referred to in theis a certificate of a bank different from that into which the cheque is being paid. Even if there be any doubt in this matter we are satisfied that when once the stall at the Bullion Hallascertained that the cheque was backed by sufficient funds to the credit of the customer in the account on which it is drawn, it satisfies the requirements of a cheque certified as good for payment within. The learned Judges of the High Court, therefore, rightly held that this payment was not outside the payments permitted by the saidhowever, does not help him because it concerns the price for 25 bars and, having regard to the quantity of silver with which we are concerned, Mr. Purushottam could not but concede that even if the payment by this constituent was irregular it would not affect the validity of the purchase at the risk of the appellant. We thus reach the conclusion that except the last payment which was not quite regular but whose irregularity is not material, all the other payments were substantially, if not literally, in accordance with the requirements ofBefore concluding it is necessary to advert to the fact that both before the learned trial Judge as well as before the Division Bench a detailed analysis was made of the several payments made by about 17 members of the Association with a view to establish that those payments were not, even if they were made on the 3rd, in accordance with. The learned Judges considered the several objections which were formulated to the validity of these payments and after discussing some of the details of the individual cases which were placed before the Court, recorded their finding that the payments satisfied the requirements of the relevantIn view of the arguments addressed to us we have not examined in detail each one of the objections but have dealt only with those specifically urged before us and the tenability in general of the principles on which these objections were based. | 0 | 7,080 | 2,139 | ### 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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one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards."We consider these observations apposite and hold that where, a payment was made by a cheque drawn on an account with the Bullion Exchange sub-branch and the amount represented by that cheque was transferred to the Clearing House Account of the Association it is virtually a payment in cash, though in form a payment by cheque.15-18. The next transaction to which objection was taken was a payment into the Bullion Hall Sub-branch of a sum of Rupees 4,65,000 by one Sri Bansilal and Sons. The evidence was that the cheque was drawn not on his account on the Bullion Hall Sub-branch of the Bank of Baroda but with the branch of the Bank at the Fort, Bombay. The evidence which the Court accepted was that on the presentation of the cheque the tax ascertained that the constituent had enough funds in the bank for the cheque to be cleared and accepted it and credited the same to the account of the Bullion Exchange Association. The objection raised to the receipt of this payment was also founded on the cheque not being certified as good for payment. It will be noticed that the only point of difference between this cheque and the cheques which were drawn on accounts of members with the Bullion Hall branch which we have dealt with just now is, that the cheque for Rs. 4,65,000 was not drawn on the drawers account with the Bullion Hall Sub-branch but on an account in the same bank at the Fort Branch. For the purpose of considering this point it is not necessary to enter on any examination of the question as to what extent the two branches of the same bank are separate entities. There is no doubt that a customer cannot claim to draw cheques except on the branch where his moneys are deposited and on the account in respect of which the cheque is issued. But that is not what is in controversy in the present case. Here a cheque drawn on the Fort Branch is paid into the Bullion Hall Sub-branch to the credit of the Association. The Bullion Hall Sub-branch of the bank accepts that cheque and credits it to the Association after ascertaining that the drawer of the cheque has enough funds at the Fort branch for meeting that cheque. The only question is whether the payment could be treated as by a cheque which is certified as good for payment. We consider that what we have stated earlier as to the position in regard to a cheque drawn on an account in the same branch would also apply to the present case and that a certificate of the banker that is referred to in the bye-law is a certificate of a bank different from that into which the cheque is being paid. Even if there be any doubt in this matter we are satisfied that when once the stall at the Bullion Hall Sub-branch ascertained that the cheque was backed by sufficient funds to the credit of the customer in the account on which it is drawn, it satisfies the requirements of a cheque certified as good for payment within bye-law 137-B. The learned Judges of the High Court, therefore, rightly held that this payment was not outside the payments permitted by the said bye-law.19. The last of the cases concerns a payment by one Jethalal Sangji Shah of a cheque for Rs. 1,16,250. The, cheque was made in favour of the Bank of India Ltd. not certified good for payment and was paid into the Bullion Hall Sub-branch. The Clearing House received this cheque from Jethalal Sangji Shah after obtaining a declaration from him that he had enough credit in his account with the Bank of India for meeting that cheque. It was stated that the Directors of the Association were approached by the Bank as to whether this cheque could be received in payment and that it was on their advice that a declaration in the form specified was taken from the member and it was only thereafter that the payment was accepted as conforming to by law 137-B. Mr. Purshottam submitted that this payment could certainly not be within bye-law 137-B, and we consider that learned Counsel is right. This, however, does not help him because it concerns the price for 25 bars and, having regard to the quantity of silver with which we are concerned, Mr. Purushottam could not but concede that even if the payment by this constituent was irregular it would not affect the validity of the purchase at the risk of the appellant. We thus reach the conclusion that except the last payment which was not quite regular but whose irregularity is not material, all the other payments were substantially, if not literally, in accordance with the requirements of bye-law 137-B and in consequence the purchase made by the Directors at the risk of the appellant was legal and justified under the by-laws.20. Before concluding it is necessary to advert to the fact that both before the learned trial Judge as well as before the Division Bench a detailed analysis was made of the several payments made by about 17 members of the Association with a view to establish that those payments were not, even if they were made on the 3rd, in accordance with bye-law 137-B. The learned Judges considered the several objections which were formulated to the validity of these payments and after discussing some of the details of the individual cases which were placed before the Court, recorded their finding that the payments satisfied the requirements of the relevant bye-law. In view of the arguments addressed to us we have not examined in detail each one of the objections but have dealt only with those specifically urged before us and the tenability in general of the principles on which these objections were based.
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the payment for Rs. 4,65,000 which Khimji made. It is not disputed, or rather it cannot be disputed that the Head Office of the bank credited Khimji Poonja and Co. with the sum of Rs. 2,00,000 and there is evidence as to the intimation of the credit by the Head Office. Of course, the cheque by Khimji on the Chartered Bank was not certified "good for payment" but that was not a payment under. The Head office accepted it and, therefore, nothing follows from their not having insisted on that cheque being certified. The fact remains that the Head Office accepted that cheque; we shall take it in anticipation of being cleared, and as a fact it was cleared the next day. With the propriety of the Head Office of the Bank crediting the constituent with the amount of that cheque before actual realisation neither the Bullion Exchange Branch nor the Association to whose account the sum of Rs. 4,65,000 represented by the cheque drawn in their favour was credited, nor the appellant are concerned. When once the Bank credited that sum into the amount there was enough credit for meeting the cheque of Rs. 4,65,000 which is the only point we are concerneddo not, however, derive any assistance from these decisions on the point now in controversy.The first thing to be noticed about this objection as to certification is that there is no question of certification where a cheque drawn on an account in a branch of a bank is paid into the same branch to the credit of another party who has an account in that branch. Certification is a method adopted when a bank on which a cheque is drawn verifies the customers account on which it is drawn and indicates on the cheque that there are enough funds in his account to meet that cheque. It is obvious that there could be no question of such a certification by a bank of a cheque drawn on an account in a branch when the drawer pays it to the credit of a different account in the same branch. The verification of the account of the constituent for the purpose of ascertaining whether there is enough credit to meet the cheque which precedes a certification takes place at the very moment when the cheque is cleared. There is, therefore, no question then of twocertifying bank on which the cheque is drawn and a clearing bank into which that cheque is paid. In such circumstances, we should consider that the proper view to take of the payment would be that it is really a payment in cash.The Privy Council had, in Arsene A. Larocque v. Hyacinthe Beanchemin, 1897 AC 358, to consider whether the payment a company by receipts given by it on account of the purchase price of the property which they sold was a payment inconsider these observations apposite and hold that where, a payment was made by a cheque drawn on an account with the Bullion Exchangeand the amount represented by that cheque was transferred to the Clearing House Account of the Association it is virtually a payment in cash, though in form a payment byis no doubt that a customer cannot claim to draw cheques except on the branch where his moneys are deposited and on the account in respect of which the cheque is issued. But that is not what is in controversy in the present case. Here a cheque drawn on the Fort Branch is paid into the Bullion Hallto the credit of the Association. The Bullion Hallof the bank accepts that cheque and credits it to the Association after ascertaining that the drawer of the cheque has enough funds at the Fort branch for meeting thatconsider that what we have stated earlier as to the position in regard to a cheque drawn on an account in the same branch would also apply to the present case and that a certificate of the banker that is referred to in theis a certificate of a bank different from that into which the cheque is being paid. Even if there be any doubt in this matter we are satisfied that when once the stall at the Bullion Hallascertained that the cheque was backed by sufficient funds to the credit of the customer in the account on which it is drawn, it satisfies the requirements of a cheque certified as good for payment within. The learned Judges of the High Court, therefore, rightly held that this payment was not outside the payments permitted by the saidhowever, does not help him because it concerns the price for 25 bars and, having regard to the quantity of silver with which we are concerned, Mr. Purushottam could not but concede that even if the payment by this constituent was irregular it would not affect the validity of the purchase at the risk of the appellant. We thus reach the conclusion that except the last payment which was not quite regular but whose irregularity is not material, all the other payments were substantially, if not literally, in accordance with the requirements ofBefore concluding it is necessary to advert to the fact that both before the learned trial Judge as well as before the Division Bench a detailed analysis was made of the several payments made by about 17 members of the Association with a view to establish that those payments were not, even if they were made on the 3rd, in accordance with. The learned Judges considered the several objections which were formulated to the validity of these payments and after discussing some of the details of the individual cases which were placed before the Court, recorded their finding that the payments satisfied the requirements of the relevantIn view of the arguments addressed to us we have not examined in detail each one of the objections but have dealt only with those specifically urged before us and the tenability in general of the principles on which these objections were based.
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Union Of India Vs. T. R. Varma | on that date, among them being Sri C. B. Tawakley. If, as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses, Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross examine the previous witnesses. A reading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but was not directed. We think it likely that the respondent did not cross-examine the witnesses because there was nothing left for him to cross-examine. The learned Judges gave two reasons for accepting the statement of the respondent in preference to that of Mr. Byrne. One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this? That, in fact, there was no cross-examination, which is a fact; not that the request of the respondent to cross-examine was disallowed. Then again, the learned Judges say that the respondent was present at the hearing of the writ petition before them that they put questions to him, and formed the opinion that he was sufficiently intelligent, and that it was difficult to believe that he would not have cross-examined the witnesses. We are of opinion that this was a consideration which ought not to have been taken into account in a judicial determination of the question, and that it should have been wholly excluded. On a consideration of the record and of the probabilities, we accept the statement of Mr. Byrne as true, and hold that the respondent was not refused permission to cross-examine the witnesses, and that the charge that the enquiry was defective for this reason cannot be sustained.9. The respondent attached the enquiry on two other grounds which were stated by him in his petition in the following terms:"(C) That the petitioner was cross-examined and was not enabled to make an oral statement on his own behalf.(D) That the defence witnesses were not given an opportunity to tell their own version or to be examined by the petitioner as their depositions were confined to answers in reply to questions put by the Inquiry Officer."10. In substance, the charge is that the respondent and his witnesses should have been allowed to give their evidence by way of examination-in-chief, and that only thereafter, the officer should have cross-examined them, but that he took upon himself to cross-examine them from the very start and had thereby violated well- recognised rules of procedure. There is also a complaint that the respondent was not allowed to put questions to them.11. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98 : ((S) AIR 1957 SC 232 ) (C) where this question is discussed.12. We have examined the record in the light of the above principles and find that there has been no violation of the principles of natural justice. The witnesses have been examined at great length, and have spoken to all relevant facts bearing on the question, and it is not suggested that there is any other matter, on which they could have spoken. We do not accept the version of the respondent that he was not allowed to put any questions to the witnesses. Indeed, the evidence of Sri Jai Narayan at p. 188 of the Paper Book shows that the only question on which the respondent wished this witness to testify was put to him by Mr. Byrne. The evidence of Sri Bhan and Sri Fateh Singh was, it should be noted, wholly in support of the respondent. The findings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of the respondent. It should also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied that they are wholly without substance, and are an afterthought. We accordingly hold, differing from the learned Judges of the Court below, that the enquiry before Mr. Byrne was not defective, that the respondent had full opportunity of placing his evidence before him, and that he did avail him-self of the same. In this view, it becomes unnecessary necessary to express any opinion on the second question which was raised by the learned Solicitor-General.13 | 1[ds]It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 : (AIR 1950 SC 163 ) (A) "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs": Vide also K. S. Rashid and Son v. The Income-tax Investigation Commission, 1954 SCR 738 at p. 747: (AIR 1954 SC 207 at p. 210) (B). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. None such appears in the presentis a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to apropose to dispose of this appeal on a consideration of thehave thus before us two statements, one by Mr. Byrne and the other by the respondent, and they are in flat contradiction of each other.The question is which of them is to be accepted. When there is a dispute as to what happened before a court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct, and there is no reason why the statement of Mr. Byrne should not be accepted aswas admittedly an officer holding a high position, and it is not suggested that there was any motive for him to give false evidence. There are moreover, features in the record, which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses were examined on that date, among them being Sri C. B.as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses, Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross examine the previousreading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but was not directed. We think it likely that the respondent did not cross-examine the witnesses because there was nothing left for him tolearned Judges gave two reasons for accepting the statement of the respondent in preference to that of Mr. Byrne. One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this? That, in fact, there was no cross-examination, which is a fact; not that the request of the respondent to cross-examine wasa consideration of the record and of the probabilities, we accept the statement of Mr. Byrne as true, and hold that the respondent was not refused permission to cross-examine the witnesses, and that the charge that the enquiry was defective for this reason cannot be sustained.substance, the charge is that the respondent and his witnesses should have been allowed to give their evidence by way of examination-in-chief, and that only thereafter, the officer should have cross-examined them, but that he took upon himself to cross-examine them from the very start and had thereby violated well- recognised rules of procedure. There is also a complaint that the respondent was not allowed to put questions to them.Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court ofit broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explainingthese rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98 : ((S) AIR 1957 SC 232 ) (C) where this question is discussed.We have examined the record in the light of the above principles and find that there has been no violation of the principles of natural justice. The witnesses have been examined at great length, and have spoken to all relevant facts bearing on the question, and it is not suggested that there is any other matter, on which they could have spoken. We do not accept the version of the respondent that he was not allowed to put any questions to thefindings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of theshould also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied that they are wholly without substance, and are an afterthought. We accordingly hold, differing from the learned Judges of the Court below, that the enquiry before Mr. Byrne was not defective, that the respondent had full opportunity of placing his evidence before him, and that he did avail him-self of the same. In this view, it becomes unnecessary necessary to express any opinion on the second question which was raised by the learned Solicitor-General. | 1 | 3,312 | 1,219 | ### Instruction:
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on that date, among them being Sri C. B. Tawakley. If, as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses, Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross examine the previous witnesses. A reading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but was not directed. We think it likely that the respondent did not cross-examine the witnesses because there was nothing left for him to cross-examine. The learned Judges gave two reasons for accepting the statement of the respondent in preference to that of Mr. Byrne. One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this? That, in fact, there was no cross-examination, which is a fact; not that the request of the respondent to cross-examine was disallowed. Then again, the learned Judges say that the respondent was present at the hearing of the writ petition before them that they put questions to him, and formed the opinion that he was sufficiently intelligent, and that it was difficult to believe that he would not have cross-examined the witnesses. We are of opinion that this was a consideration which ought not to have been taken into account in a judicial determination of the question, and that it should have been wholly excluded. On a consideration of the record and of the probabilities, we accept the statement of Mr. Byrne as true, and hold that the respondent was not refused permission to cross-examine the witnesses, and that the charge that the enquiry was defective for this reason cannot be sustained.9. The respondent attached the enquiry on two other grounds which were stated by him in his petition in the following terms:"(C) That the petitioner was cross-examined and was not enabled to make an oral statement on his own behalf.(D) That the defence witnesses were not given an opportunity to tell their own version or to be examined by the petitioner as their depositions were confined to answers in reply to questions put by the Inquiry Officer."10. In substance, the charge is that the respondent and his witnesses should have been allowed to give their evidence by way of examination-in-chief, and that only thereafter, the officer should have cross-examined them, but that he took upon himself to cross-examine them from the very start and had thereby violated well- recognised rules of procedure. There is also a complaint that the respondent was not allowed to put questions to them.11. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98 : ((S) AIR 1957 SC 232 ) (C) where this question is discussed.12. We have examined the record in the light of the above principles and find that there has been no violation of the principles of natural justice. The witnesses have been examined at great length, and have spoken to all relevant facts bearing on the question, and it is not suggested that there is any other matter, on which they could have spoken. We do not accept the version of the respondent that he was not allowed to put any questions to the witnesses. Indeed, the evidence of Sri Jai Narayan at p. 188 of the Paper Book shows that the only question on which the respondent wished this witness to testify was put to him by Mr. Byrne. The evidence of Sri Bhan and Sri Fateh Singh was, it should be noted, wholly in support of the respondent. The findings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of the respondent. It should also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied that they are wholly without substance, and are an afterthought. We accordingly hold, differing from the learned Judges of the Court below, that the enquiry before Mr. Byrne was not defective, that the respondent had full opportunity of placing his evidence before him, and that he did avail him-self of the same. In this view, it becomes unnecessary necessary to express any opinion on the second question which was raised by the learned Solicitor-General.13
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at p. 747: (AIR 1954 SC 207 at p. 210) (B). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. None such appears in the presentis a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to apropose to dispose of this appeal on a consideration of thehave thus before us two statements, one by Mr. Byrne and the other by the respondent, and they are in flat contradiction of each other.The question is which of them is to be accepted. When there is a dispute as to what happened before a court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct, and there is no reason why the statement of Mr. Byrne should not be accepted aswas admittedly an officer holding a high position, and it is not suggested that there was any motive for him to give false evidence. There are moreover, features in the record, which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses were examined on that date, among them being Sri C. B.as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses, Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross examine the previousreading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but was not directed. We think it likely that the respondent did not cross-examine the witnesses because there was nothing left for him tolearned Judges gave two reasons for accepting the statement of the respondent in preference to that of Mr. Byrne. One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this? That, in fact, there was no cross-examination, which is a fact; not that the request of the respondent to cross-examine wasa consideration of the record and of the probabilities, we accept the statement of Mr. Byrne as true, and hold that the respondent was not refused permission to cross-examine the witnesses, and that the charge that the enquiry was defective for this reason cannot be sustained.substance, the charge is that the respondent and his witnesses should have been allowed to give their evidence by way of examination-in-chief, and that only thereafter, the officer should have cross-examined them, but that he took upon himself to cross-examine them from the very start and had thereby violated well- recognised rules of procedure. There is also a complaint that the respondent was not allowed to put questions to them.Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court ofit broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explainingthese rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98 : ((S) AIR 1957 SC 232 ) (C) where this question is discussed.We have examined the record in the light of the above principles and find that there has been no violation of the principles of natural justice. The witnesses have been examined at great length, and have spoken to all relevant facts bearing on the question, and it is not suggested that there is any other matter, on which they could have spoken. We do not accept the version of the respondent that he was not allowed to put any questions to thefindings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of theshould also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied that they are wholly without substance, and are an afterthought. We accordingly hold, differing from the learned Judges of the Court below, that the enquiry before Mr. Byrne was not defective, that the respondent had full opportunity of placing his evidence before him, and that he did avail him-self of the same. In this view, it becomes unnecessary necessary to express any opinion on the second question which was raised by the learned Solicitor-General.
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Gauri Shanker Vs. Union Of India | residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises his business which enables him to maintain himself and his family comes to a standstill. It is common knowledge that; it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at particular place has its own goodwill and other distinct advantage. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going......It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate......It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole.....Commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act. 12. It is evident from the above decision of the Constitution Bench of this Court that a commercial tenancy is invaluable and has got distinct features and characteristic of its own different from that of a residential tenancy. None of the peculiar or unique feature present in the case of commercial tenancies exist in the case of residential tenancies. In the above background, if the legislature thought it fit to afford a greater and extended right or benefit to the heirs of the statutory tenants of commercial premises and not to extend such rights to the heirs of the statutory tenants of residential premises, we should say that it only stands to reasons and reckons the stark realities of the prevailing situation. The protection afforded by the Rent Act to tenant after the termination of the tenancy and to the heirs of the tenant is only a creation of the Act and it is open to the legislature to make appropriate provisions in that behalf. It can make suitable and appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be so enjoyed and the manner in which the same is to be enjoyed. In the above perspective, we are of the view that the provisions in Section 2(1)(iii) of the Act, which seeks to restrict or limit the light of the heirs, in so far as the statutory tenants of residential premises are concerned and to the extent provided therein, are not in any way discriminatory and do not offend the guarantee under Article 14 of the Constitution. This is not a case where the residential tenancy and the commercial tenancy are similarly placed. They belong to two different categories with distinct features and characteristics of their own. No question of discrimination arises. In the context, it is only proper to quote the following observations in Sakhawat Ali v. The State of Orissa, 1955(1) SCR 1004, at page 1010, which is apposite: "......legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution. Nor are we impressed by the plea that the right to shelter is a guarantee under Article 21 of the Constitution of India and so the abridgement or limitation placed on the right of the legal heirs in the case of a statutory tenancy of residential premises makes an inroad into the right of the tenant under Article 21 of the Constitution of India. We hold that the statutory tenancies regarding residential premises are distinct and different from statutory tenancies regarding commercial premises and the limitations or the restrictions placed by Section 2(1)(iii) of the Act on the rights of the heirs of the statutory tenants of residential premises are reasonable, fair and just in all the circumstances of the case. There is no violation of the guarantee enshrined in Article 14 or Article 21 of the Constitution of India. | 0[ds]7. The scope and content of Article 14 of the Constitution of India, familiarly known as the equality clause, have been laid down in innumerable decisions of this Court. It is unnecessary to refer to all of them. Briefly stated the gravamen of the Article is equality of treatment. Article 14 forbids discrimination. As stated by Shah, J. in Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P. and Ors., AIR 1970 SCis implicit from the above, that equals should not be treated unlike and unlikes should not be treated alike. Likes should be treated alike. It is settled law that in giving effect to the said salutary principle, a mathematical precision is not envisaged and there should be no fanatical or `doctrinaire or wooden approach to the matter. A practical or realistic approach should be adopted. It is open to the State to classify persons or things or objects, for legitimate purposes.8. The scope of Article 14 has been summarised in the oft quote decision, Ram Krishna Dalmia and Ors. v. Justice S. R. Tendolkar and Ors., AIR 1958 SC 538 .In Ram Krishna Dalmias case, the different situations in which a statute may come up for consideration on the question of validity under Article 14 of the Constitution have been catalogued in paragraph 12 of the judgment. They are broadly dealt with as falling in five groups or clauses.It is also appropriate to state that a commercial tenancy is much more valuable and precious than a residential tenancy. In the above decision of the Supreme Court, this aspect was highlighted to the following effect in paragraph 34 of the Judgment thuscarried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his family. Out of the income earned by the tenant from his business in the commercial premises, the tenant maintains himself and his family; and the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income. Even if a tenant is evicted from his residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises his business which enables him to maintain himself and his family comes to a standstill. It is common knowledge that; it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at particular place has its own goodwill and other distinct advantage. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going......It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate......It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole.....Commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act.It is evident from the above decision of the Constitution Bench of this Court that a commercial tenancy is invaluable and has got distinct features and characteristic of its own different from that of a residential tenancy. None of the peculiar or unique feature present in the case of commercial tenancies exist in the case of residential tenancies. In the above background, if the legislature thought it fit to afford a greater and extended right or benefit to the heirs of the statutory tenants of commercial premises and not to extend such rights to the heirs of the statutory tenants of residential premises, we should say that it only stands to reasons and reckons the stark realities of the prevailing situation. The protection afforded by the Rent Act to tenant after the termination of the tenancy and to the heirs of the tenant is only a creation of the Act and it is open to the legislature to make appropriate provisions in that behalf. It can make suitable and appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be so enjoyed and the manner in which the same is to be enjoyed. In the above perspective, we are of the view that the provisions in Section 2(1)(iii) of the Act, which seeks to restrict or limit the light of the heirs, in so far as the statutory tenants of residential premises are concerned and to the extent provided therein, are not in any way discriminatory and do not offend the guarantee under Article 14 of the Constitution. This is not a case where the residential tenancy and the commercial tenancy are similarly placed. They belong to two different categories with distinct features and characteristics of their own. No question of discrimination arises. In the context, it is only proper to quote the following observations in Sakhawat Ali v. The State of Orissa, 1955(1) SCR 1004, at page 1010, which isenacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of theare we impressed by the plea that the right to shelter is a guarantee under Article 21 of the Constitution of India and so the abridgement or limitation placed on the right of the legal heirs in the case of a statutory tenancy of residential premises makes an inroad into the right of the tenant under Article 21 of the Constitution of India. We hold that the statutory tenancies regarding residential premises are distinct and different from statutory tenancies regarding commercial premises and the limitations or the restrictions placed by Section 2(1)(iii) of the Act on the rights of the heirs of the statutory tenants of residential premises are reasonable, fair and just in all the circumstances of the case. There is no violation of the guarantee enshrined in Article 14 or Article 21 of the Constitution of India. | 0 | 4,919 | 1,459 | ### Instruction:
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residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises his business which enables him to maintain himself and his family comes to a standstill. It is common knowledge that; it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at particular place has its own goodwill and other distinct advantage. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going......It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate......It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole.....Commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act. 12. It is evident from the above decision of the Constitution Bench of this Court that a commercial tenancy is invaluable and has got distinct features and characteristic of its own different from that of a residential tenancy. None of the peculiar or unique feature present in the case of commercial tenancies exist in the case of residential tenancies. In the above background, if the legislature thought it fit to afford a greater and extended right or benefit to the heirs of the statutory tenants of commercial premises and not to extend such rights to the heirs of the statutory tenants of residential premises, we should say that it only stands to reasons and reckons the stark realities of the prevailing situation. The protection afforded by the Rent Act to tenant after the termination of the tenancy and to the heirs of the tenant is only a creation of the Act and it is open to the legislature to make appropriate provisions in that behalf. It can make suitable and appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be so enjoyed and the manner in which the same is to be enjoyed. In the above perspective, we are of the view that the provisions in Section 2(1)(iii) of the Act, which seeks to restrict or limit the light of the heirs, in so far as the statutory tenants of residential premises are concerned and to the extent provided therein, are not in any way discriminatory and do not offend the guarantee under Article 14 of the Constitution. This is not a case where the residential tenancy and the commercial tenancy are similarly placed. They belong to two different categories with distinct features and characteristics of their own. No question of discrimination arises. In the context, it is only proper to quote the following observations in Sakhawat Ali v. The State of Orissa, 1955(1) SCR 1004, at page 1010, which is apposite: "......legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution. Nor are we impressed by the plea that the right to shelter is a guarantee under Article 21 of the Constitution of India and so the abridgement or limitation placed on the right of the legal heirs in the case of a statutory tenancy of residential premises makes an inroad into the right of the tenant under Article 21 of the Constitution of India. We hold that the statutory tenancies regarding residential premises are distinct and different from statutory tenancies regarding commercial premises and the limitations or the restrictions placed by Section 2(1)(iii) of the Act on the rights of the heirs of the statutory tenants of residential premises are reasonable, fair and just in all the circumstances of the case. There is no violation of the guarantee enshrined in Article 14 or Article 21 of the Constitution of India.
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### Explanation:
Even if a tenant is evicted from his residential premises, he may with the earnings out of the business be in a position to arrange for some other accommodation for his residence with his family. When, however, a tenant is thrown out of the commercial premises his business which enables him to maintain himself and his family comes to a standstill. It is common knowledge that; it is much more difficult to find suitable business premises than to find suitable premises for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even though not legally payable, may have to be paid and rents of commercial premises are usually very high. Besides, a business which has been carried on for years at particular place has its own goodwill and other distinct advantage. The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained, is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually, on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going......It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate......It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole.....Commercial premises are let out not only to individuals but also to Companies, Corporations and other statutory bodies having a juristic personality. In fact, tenancies in respect of commercial premises are usually taken by Companies and Corporations. When the tenant is a Company or a Corporation or anybody with juristic personality, question of the death of the tenant will not arise. Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act.It is evident from the above decision of the Constitution Bench of this Court that a commercial tenancy is invaluable and has got distinct features and characteristic of its own different from that of a residential tenancy. None of the peculiar or unique feature present in the case of commercial tenancies exist in the case of residential tenancies. In the above background, if the legislature thought it fit to afford a greater and extended right or benefit to the heirs of the statutory tenants of commercial premises and not to extend such rights to the heirs of the statutory tenants of residential premises, we should say that it only stands to reasons and reckons the stark realities of the prevailing situation. The protection afforded by the Rent Act to tenant after the termination of the tenancy and to the heirs of the tenant is only a creation of the Act and it is open to the legislature to make appropriate provisions in that behalf. It can make suitable and appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be so enjoyed and the manner in which the same is to be enjoyed. In the above perspective, we are of the view that the provisions in Section 2(1)(iii) of the Act, which seeks to restrict or limit the light of the heirs, in so far as the statutory tenants of residential premises are concerned and to the extent provided therein, are not in any way discriminatory and do not offend the guarantee under Article 14 of the Constitution. This is not a case where the residential tenancy and the commercial tenancy are similarly placed. They belong to two different categories with distinct features and characteristics of their own. No question of discrimination arises. In the context, it is only proper to quote the following observations in Sakhawat Ali v. The State of Orissa, 1955(1) SCR 1004, at page 1010, which isenacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of theare we impressed by the plea that the right to shelter is a guarantee under Article 21 of the Constitution of India and so the abridgement or limitation placed on the right of the legal heirs in the case of a statutory tenancy of residential premises makes an inroad into the right of the tenant under Article 21 of the Constitution of India. We hold that the statutory tenancies regarding residential premises are distinct and different from statutory tenancies regarding commercial premises and the limitations or the restrictions placed by Section 2(1)(iii) of the Act on the rights of the heirs of the statutory tenants of residential premises are reasonable, fair and just in all the circumstances of the case. There is no violation of the guarantee enshrined in Article 14 or Article 21 of the Constitution of India.
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State of W.B Vs. Shyamapada Etc | of 20 times the annual income. For the rest of the danga lands the compensation was raised to Rs. 100/- an acre. The appeals are confined only to these two questions.4. Mr. B, Sen appearing on behalf of the State of West Bengal contended that it looked rather absurd that while sali land, which is considered to be the best quality of land on which paddy is grown, was awarded compensation at the rate of Rupees 425/- per acre and the land owners had no objection to the compensation, they wanted Rs. 800 per acre for land growing sabai grass. It must be noted that even the land owners claimed only Rs. 600 per acre for sali land, Rs. 800 per acre for danga land on which urban grass was grown and for the rest they claimed Rs. 200/- per acre. While the land classification for revenue purposes might have its own rationale, it is not uncommon to find that land which has a lower classification for revenue purposes fetches a higher price in the market. The question of the value of the land on which sabai grass is grown should therefore be decided on other considerations. In this connection we may refer to the book called "The Wealth of India", which is a dictionary of Indian raw materials and industrial products published by the Council of Scientific and Industrial Research, which has an article on sabai grass in Vol. III, pp. 219-221. It refers to sabai grass as a tufted perennial grass common, among other places, in Bengal and that it adapts itself readily to the barren danga soils of West Bengal. According to this book, in the danga soils of West Bengal the yield averages to 20-30 md, per acre per annum. The yield and quality of grass from continuously cropped areas suffer after 7-10 years. It is therefore necessary to withhold cropping for one or two years at fair intervals. It would thus be seen that the fact that the life of sabai grass is 7 to 10 years does not mean that the land on which it is grown is useless thereafter or that its value can be worked out on any other basis except that of a multiple of the annual income. After one crop is taken for 7 to 10 years another crop can be raised after an interval of one to two years.It was therefore wholly unjustifiable for the Land Acquisition Collector as well as the learned District Judge, Midnapore to grant compensation to the land owners only for the crop standing on the land. As sale deeds regarding sales of land on which sabai grass is grown are not available in this case, the compensation to be awarded to the land owners should be at 20 times the annual income from the land.5. Even according to the Land Acquisition Collector the crop standing on the land was yielding Rupees 26/4/- per acre on an yield of 10 maunds and according to the learned District Judge Rs. 36/- per acre on an yield of 18 maunds. On the basis of 20 years income the compensation would have to be Rs. 525/- per acre at the rate of income adopted by the Land Acquisition Collector and Rupees 720/- per acre at the rate adopted by the learned District Judge. We may refer to the evidence of claimants witness No. 3 who gives the value of sabai grass at Rs. 4/8/- to Rs. 5/8/-, as also the evidence of one of the claimants that the price of sabai grass varied from Rs. 5/- to Rs. 5/8/- in l951. The learned Judges of the High Court have accepted the price of one maund of sabai grass at Rs. 4/- and considering the accounts produced by the land owners which showed that they had sold sabai grass at Rs. 4/8/- to Rs. 5/8/- per maund, Rs. 4/- per maund taken by the learned Judges of the High Court as the basis for determining the compensation cannot be said to err on the liberal side. So also the yield of 20 maunds an acre in view of the evidence of P.W.6 as well as the extracts from "The Wealth of India" already referred to. We see no reason for not accepting the learned District Judges conclusion that 150 acres had been cultivated with sabai grass. We are therefore of opinion that there is no case for interference with the judgment of the learned Judges of the High Court as regards the value of the land cultivated with sabai grass.6. As regards the rest of the danga lands even the Kanoongo assessed the value of the danga land in Ex. A at Rs. 75 per acre.The learned judges have referred to certain other documents which showed the value of danga lands at Rs. 200/- per acre to Rs. 490/- per acre and even Rupees 600/- per acre. In the face of these findings we are of opinion that the learned Judges of the High Court were quite justified in awarding compensation for the danga lands at the rate of Rs. l00/- per acre. This conclusion is strengthed by a reference to Ex. A at page 60 of Part II of the High Court paper-book. By deed No. 187 of 1951 sali and danga land had been sold at Rs. 703.2.0 per acre whereas by deed No. 405 of 1951 sali land had been sold at Rs, 800 per acre. There is another sale of sali land by deed No. 465 of 1951 at Rs. 1034-7-9. By deed No. 823 of 1951 sali and danga lands have been sold at Rupees 111-1-9. Though we do not know the relative proportion of danga and sali lands in these documents, they give a rough idea of the value of sali lands. We refer to these documents only to lend assurance to our conclusion that the learned Judges of the High Court were right in regard to the value of the danga land. | 0[ds]We may refer to the evidence of claimants witness No. 3 who gives the value of sabai grass at Rs. 4/8/as also the evidence of one of the claimants that the price of sabai grass varied from Rs. 5/to Rs. 5/8/in l951. The learned Judges of the High Court have accepted the price of one maund of sabai grass at Rs. 4/and considering the accounts produced by the land owners which showed that they had sold sabai grass at Rs. 4/8/to Rs. 5/8/per maund, Rs. 4/per maund taken by the learned Judges of the High Court as the basis for determining the compensation cannot be said to err on the liberal side. So also the yield of 20 maunds an acre in view of the evidence of P.W.6 as well as the extracts from "The Wealth of India" already referred to. We see no reason for not accepting the learned District Judges conclusion that 150 acres had been cultivated with sabai grass. We are therefore of opinion that there is no case for interference with the judgment of the learned Judges of the High Court as regards the value of the land cultivated with sabai grass.6. As regards the rest of the danga lands even the Kanoongo assessed the value of the danga land in Ex. A at Rs. 75 per acre.The learned judges have referred to certain other documents which showed the value of danga lands at Rs. 200/per acre to Rs. 490/per acre and even Rupees 600/per acre. In the face of these findings we are of opinion that the learned Judges of the High Court were quite justified in awarding compensation for the danga lands at the rate of Rs. l00/per acre. This conclusion is strengthed by a reference to Ex. A at page 60 of Part II of the High CourtBy deed No. 187 of 1951 sali and danga land had been sold at Rs. 703.2.0 per acre whereas by deed No. 405 of 1951 sali land had been sold at Rs, 800 per acre. There is another sale of sali land by deed No. 465 of 1951 at Rs.By deed No. 823 of 1951 sali and danga lands have been sold at RupeesThough we do not know the relative proportion of danga and sali lands in these documents, they give a rough idea of the value of sali lands. We refer to these documents only to lend assurance to our conclusion that the learned Judges of the High Court were right in regard to the value of the danga land. | 0 | 1,461 | 464 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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of 20 times the annual income. For the rest of the danga lands the compensation was raised to Rs. 100/- an acre. The appeals are confined only to these two questions.4. Mr. B, Sen appearing on behalf of the State of West Bengal contended that it looked rather absurd that while sali land, which is considered to be the best quality of land on which paddy is grown, was awarded compensation at the rate of Rupees 425/- per acre and the land owners had no objection to the compensation, they wanted Rs. 800 per acre for land growing sabai grass. It must be noted that even the land owners claimed only Rs. 600 per acre for sali land, Rs. 800 per acre for danga land on which urban grass was grown and for the rest they claimed Rs. 200/- per acre. While the land classification for revenue purposes might have its own rationale, it is not uncommon to find that land which has a lower classification for revenue purposes fetches a higher price in the market. The question of the value of the land on which sabai grass is grown should therefore be decided on other considerations. In this connection we may refer to the book called "The Wealth of India", which is a dictionary of Indian raw materials and industrial products published by the Council of Scientific and Industrial Research, which has an article on sabai grass in Vol. III, pp. 219-221. It refers to sabai grass as a tufted perennial grass common, among other places, in Bengal and that it adapts itself readily to the barren danga soils of West Bengal. According to this book, in the danga soils of West Bengal the yield averages to 20-30 md, per acre per annum. The yield and quality of grass from continuously cropped areas suffer after 7-10 years. It is therefore necessary to withhold cropping for one or two years at fair intervals. It would thus be seen that the fact that the life of sabai grass is 7 to 10 years does not mean that the land on which it is grown is useless thereafter or that its value can be worked out on any other basis except that of a multiple of the annual income. After one crop is taken for 7 to 10 years another crop can be raised after an interval of one to two years.It was therefore wholly unjustifiable for the Land Acquisition Collector as well as the learned District Judge, Midnapore to grant compensation to the land owners only for the crop standing on the land. As sale deeds regarding sales of land on which sabai grass is grown are not available in this case, the compensation to be awarded to the land owners should be at 20 times the annual income from the land.5. Even according to the Land Acquisition Collector the crop standing on the land was yielding Rupees 26/4/- per acre on an yield of 10 maunds and according to the learned District Judge Rs. 36/- per acre on an yield of 18 maunds. On the basis of 20 years income the compensation would have to be Rs. 525/- per acre at the rate of income adopted by the Land Acquisition Collector and Rupees 720/- per acre at the rate adopted by the learned District Judge. We may refer to the evidence of claimants witness No. 3 who gives the value of sabai grass at Rs. 4/8/- to Rs. 5/8/-, as also the evidence of one of the claimants that the price of sabai grass varied from Rs. 5/- to Rs. 5/8/- in l951. The learned Judges of the High Court have accepted the price of one maund of sabai grass at Rs. 4/- and considering the accounts produced by the land owners which showed that they had sold sabai grass at Rs. 4/8/- to Rs. 5/8/- per maund, Rs. 4/- per maund taken by the learned Judges of the High Court as the basis for determining the compensation cannot be said to err on the liberal side. So also the yield of 20 maunds an acre in view of the evidence of P.W.6 as well as the extracts from "The Wealth of India" already referred to. We see no reason for not accepting the learned District Judges conclusion that 150 acres had been cultivated with sabai grass. We are therefore of opinion that there is no case for interference with the judgment of the learned Judges of the High Court as regards the value of the land cultivated with sabai grass.6. As regards the rest of the danga lands even the Kanoongo assessed the value of the danga land in Ex. A at Rs. 75 per acre.The learned judges have referred to certain other documents which showed the value of danga lands at Rs. 200/- per acre to Rs. 490/- per acre and even Rupees 600/- per acre. In the face of these findings we are of opinion that the learned Judges of the High Court were quite justified in awarding compensation for the danga lands at the rate of Rs. l00/- per acre. This conclusion is strengthed by a reference to Ex. A at page 60 of Part II of the High Court paper-book. By deed No. 187 of 1951 sali and danga land had been sold at Rs. 703.2.0 per acre whereas by deed No. 405 of 1951 sali land had been sold at Rs, 800 per acre. There is another sale of sali land by deed No. 465 of 1951 at Rs. 1034-7-9. By deed No. 823 of 1951 sali and danga lands have been sold at Rupees 111-1-9. Though we do not know the relative proportion of danga and sali lands in these documents, they give a rough idea of the value of sali lands. We refer to these documents only to lend assurance to our conclusion that the learned Judges of the High Court were right in regard to the value of the danga land.
### Response:
0
### Explanation:
We may refer to the evidence of claimants witness No. 3 who gives the value of sabai grass at Rs. 4/8/as also the evidence of one of the claimants that the price of sabai grass varied from Rs. 5/to Rs. 5/8/in l951. The learned Judges of the High Court have accepted the price of one maund of sabai grass at Rs. 4/and considering the accounts produced by the land owners which showed that they had sold sabai grass at Rs. 4/8/to Rs. 5/8/per maund, Rs. 4/per maund taken by the learned Judges of the High Court as the basis for determining the compensation cannot be said to err on the liberal side. So also the yield of 20 maunds an acre in view of the evidence of P.W.6 as well as the extracts from "The Wealth of India" already referred to. We see no reason for not accepting the learned District Judges conclusion that 150 acres had been cultivated with sabai grass. We are therefore of opinion that there is no case for interference with the judgment of the learned Judges of the High Court as regards the value of the land cultivated with sabai grass.6. As regards the rest of the danga lands even the Kanoongo assessed the value of the danga land in Ex. A at Rs. 75 per acre.The learned judges have referred to certain other documents which showed the value of danga lands at Rs. 200/per acre to Rs. 490/per acre and even Rupees 600/per acre. In the face of these findings we are of opinion that the learned Judges of the High Court were quite justified in awarding compensation for the danga lands at the rate of Rs. l00/per acre. This conclusion is strengthed by a reference to Ex. A at page 60 of Part II of the High CourtBy deed No. 187 of 1951 sali and danga land had been sold at Rs. 703.2.0 per acre whereas by deed No. 405 of 1951 sali land had been sold at Rs, 800 per acre. There is another sale of sali land by deed No. 465 of 1951 at Rs.By deed No. 823 of 1951 sali and danga lands have been sold at RupeesThough we do not know the relative proportion of danga and sali lands in these documents, they give a rough idea of the value of sali lands. We refer to these documents only to lend assurance to our conclusion that the learned Judges of the High Court were right in regard to the value of the danga land.
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State of Bihar Vs. Gulab Chand Prasad | 1. We have heard Mr. Bhagat learned counsel for the appellant State, and Mr. Goburdhan, learned counsel for the respondent2. This is a peculiar case. The State of Bihar had issued an order described as Bihar Essential. Articles (Display of Prices and Stocks), Order, 1977 (hereinafter referred to as the order). It was published in the Bihar Government Gazette Extraordinary dated September 10, 1977. It came into force from the date of publication, as provided in sub-clause (3) of Clause (1). Sub-clause (a) of Clause (2) of the Order defines article to mean any essential commodity mentioned in Schs. I and II appended to the Order and further confers powers on the State Government to include any other articles if found necessary. Clause (3) casts an obligation on the dealer to display at a conspicuous place near the entrance of his business premises a list of prices and stocks of all the articles mentioned in Schedule I in which he deals. Schedule I Placitum 24 sets out soda ash (for washing purposes) as one of the articles covered by the Order. This Order is issued in exercise of the powers conferred by S. 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act). As a corollary the breach of its provisions would be punishable under S. 7 of the Act3. It is alleged by the prosecution that the respondent is a dealer in soda ash. Upon an inspection of his premises on April 13, 1979 the visiting officer found an unaccounted stock of 13 bags of soda ash, in relation to which, according to the complainant, the respondent could not produce the necessary papers. Subsequently, the respondent submitted some cash memo and also pointed out that he had sold soda ash to various parties. May be, that would be for him to establish. That fact remains that there was unaccounted soda ash as complained of in the possession of the respondent and the complainant alleged that this would be violative of the order. A complaint was filed, though of course not mentioned fact, though of course not mentioned the Order, provision of which was violated, simultaneously stating that the respondent has committed an offence punishable under S. 7 of the Act. It may be mentioned that further allegations in the complainant were that the respondent has committed offences under sections 420 and 471 of I.P.C4. It appears that the respondent moved the High Court for quashing the proceedings. It was alleged on his behalf that soda ash is not an essential commodity or an article in respect of which there is any statutory order compelling the dealer in the commodity either to display a list of prices or declare the stock. This submission found favour with the High Court. Surprisingly learned counsel appearing on behalf of the State did not point out the Order now relied upon as having been issued under the Act or any other Order, if there be one under the Defence of India Rules. The High Court was constrained to observe that only the complaint is frivolous but it was absolutely male fide because if there was no order imposing any obligation on the dealer of a commodity to display the price list or to declare the stock, there will be no question of a dealer not accounting the stock of any such article and if there was no such order, absence of explanation in respect of such a commodity or otherwise may not according to the High Court, entail any liability in law5. We are not disposed to make any observation at this stage on any part of the controversy between the parties because a statutory order covering soda ash in existence and in force. Mr. Bhagat, learned counsel for the appellant state assured us that it is in force. If it is in force, a dealer in any of the commodities mentioned in Schedule I will have to comply with Clauses 3 and 4 of the Order. Whether there is any violation of the statutory provisions enacted is Clauses 3 and 4 of the Order is a matter to be adjudicated. But it would be difficult to subscribed in the face of the Order published in the Gazette the copy of the Gazette having been submitted to us to ignore the existence of the Order. The whole basis of the approach of the learned Judge of the High Court gets knocked out once the Order is shown to be existing and in force. May be, the High Court would have acted as we propose to do if the Order was shown to the learned Judge hearing the matter. Undoubtedly. Mr. Goburdhan told us that nearly two years have elapsed since the prosecution was launched. That is a fact. However, it would be unwise to ignore the existence of a subsisting order and to dispose of a proceeding as if no such order is there | 1[ds]4. It appears that the respondent moved the High Court for quashing the proceedings. It was alleged on his behalf that soda ash is not an essential commodity or an article in respect of which there is any statutory order compelling the dealer in the commodity either to display a list of prices or declare the stock. This submission found favour with the High Court. Surprisingly learned counsel appearing on behalf of the State did not point out the Order now relied upon as having been issued under the Act or any other Order, if there be one under the Defence of India Rules. The High Court was constrained to observe that only the complaint is frivolous but it was absolutely male fide because if there was no order imposing any obligation on the dealer of a commodity to display the price list or to declare the stock, there will be no question of a dealer not accounting the stock of any such article and if there was no such order, absence of explanation in respect of such a commodity or otherwise may not according to the High Court, entail any liability in law5. We are not disposed to make any observation at this stage on any part of the controversy between the parties because a statutory order covering soda ash in existence and in force. Mr. Bhagat, learned counsel for the appellant state assured us that it is in force. If it is in force, a dealer in any of the commodities mentioned in Schedule I will have to comply with Clauses 3 and 4 of the Order. Whether there is any violation of the statutory provisions enacted is Clauses 3 and 4 of the Order is a matter to be adjudicated. But it would be difficult to subscribed in the face of the Order published in the Gazette the copy of the Gazette having been submitted to us to ignore the existence of the Order. The whole basis of the approach of the learned Judge of the High Court gets knocked out once the Order is shown to be existing and in force. May be, the High Court would have acted as we propose to do if the Order was shown to the learned Judge hearing the matter. Undoubtedly. Mr. Goburdhan told us that nearly two years have elapsed since the prosecution was launched. That is a fact. However, it would be unwise to ignore the existence of a subsisting order and to dispose of a proceeding as if no such order is there | 1 | 901 | 454 | ### 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:
1. We have heard Mr. Bhagat learned counsel for the appellant State, and Mr. Goburdhan, learned counsel for the respondent2. This is a peculiar case. The State of Bihar had issued an order described as Bihar Essential. Articles (Display of Prices and Stocks), Order, 1977 (hereinafter referred to as the order). It was published in the Bihar Government Gazette Extraordinary dated September 10, 1977. It came into force from the date of publication, as provided in sub-clause (3) of Clause (1). Sub-clause (a) of Clause (2) of the Order defines article to mean any essential commodity mentioned in Schs. I and II appended to the Order and further confers powers on the State Government to include any other articles if found necessary. Clause (3) casts an obligation on the dealer to display at a conspicuous place near the entrance of his business premises a list of prices and stocks of all the articles mentioned in Schedule I in which he deals. Schedule I Placitum 24 sets out soda ash (for washing purposes) as one of the articles covered by the Order. This Order is issued in exercise of the powers conferred by S. 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act). As a corollary the breach of its provisions would be punishable under S. 7 of the Act3. It is alleged by the prosecution that the respondent is a dealer in soda ash. Upon an inspection of his premises on April 13, 1979 the visiting officer found an unaccounted stock of 13 bags of soda ash, in relation to which, according to the complainant, the respondent could not produce the necessary papers. Subsequently, the respondent submitted some cash memo and also pointed out that he had sold soda ash to various parties. May be, that would be for him to establish. That fact remains that there was unaccounted soda ash as complained of in the possession of the respondent and the complainant alleged that this would be violative of the order. A complaint was filed, though of course not mentioned fact, though of course not mentioned the Order, provision of which was violated, simultaneously stating that the respondent has committed an offence punishable under S. 7 of the Act. It may be mentioned that further allegations in the complainant were that the respondent has committed offences under sections 420 and 471 of I.P.C4. It appears that the respondent moved the High Court for quashing the proceedings. It was alleged on his behalf that soda ash is not an essential commodity or an article in respect of which there is any statutory order compelling the dealer in the commodity either to display a list of prices or declare the stock. This submission found favour with the High Court. Surprisingly learned counsel appearing on behalf of the State did not point out the Order now relied upon as having been issued under the Act or any other Order, if there be one under the Defence of India Rules. The High Court was constrained to observe that only the complaint is frivolous but it was absolutely male fide because if there was no order imposing any obligation on the dealer of a commodity to display the price list or to declare the stock, there will be no question of a dealer not accounting the stock of any such article and if there was no such order, absence of explanation in respect of such a commodity or otherwise may not according to the High Court, entail any liability in law5. We are not disposed to make any observation at this stage on any part of the controversy between the parties because a statutory order covering soda ash in existence and in force. Mr. Bhagat, learned counsel for the appellant state assured us that it is in force. If it is in force, a dealer in any of the commodities mentioned in Schedule I will have to comply with Clauses 3 and 4 of the Order. Whether there is any violation of the statutory provisions enacted is Clauses 3 and 4 of the Order is a matter to be adjudicated. But it would be difficult to subscribed in the face of the Order published in the Gazette the copy of the Gazette having been submitted to us to ignore the existence of the Order. The whole basis of the approach of the learned Judge of the High Court gets knocked out once the Order is shown to be existing and in force. May be, the High Court would have acted as we propose to do if the Order was shown to the learned Judge hearing the matter. Undoubtedly. Mr. Goburdhan told us that nearly two years have elapsed since the prosecution was launched. That is a fact. However, it would be unwise to ignore the existence of a subsisting order and to dispose of a proceeding as if no such order is there
### Response:
1
### Explanation:
4. It appears that the respondent moved the High Court for quashing the proceedings. It was alleged on his behalf that soda ash is not an essential commodity or an article in respect of which there is any statutory order compelling the dealer in the commodity either to display a list of prices or declare the stock. This submission found favour with the High Court. Surprisingly learned counsel appearing on behalf of the State did not point out the Order now relied upon as having been issued under the Act or any other Order, if there be one under the Defence of India Rules. The High Court was constrained to observe that only the complaint is frivolous but it was absolutely male fide because if there was no order imposing any obligation on the dealer of a commodity to display the price list or to declare the stock, there will be no question of a dealer not accounting the stock of any such article and if there was no such order, absence of explanation in respect of such a commodity or otherwise may not according to the High Court, entail any liability in law5. We are not disposed to make any observation at this stage on any part of the controversy between the parties because a statutory order covering soda ash in existence and in force. Mr. Bhagat, learned counsel for the appellant state assured us that it is in force. If it is in force, a dealer in any of the commodities mentioned in Schedule I will have to comply with Clauses 3 and 4 of the Order. Whether there is any violation of the statutory provisions enacted is Clauses 3 and 4 of the Order is a matter to be adjudicated. But it would be difficult to subscribed in the face of the Order published in the Gazette the copy of the Gazette having been submitted to us to ignore the existence of the Order. The whole basis of the approach of the learned Judge of the High Court gets knocked out once the Order is shown to be existing and in force. May be, the High Court would have acted as we propose to do if the Order was shown to the learned Judge hearing the matter. Undoubtedly. Mr. Goburdhan told us that nearly two years have elapsed since the prosecution was launched. That is a fact. However, it would be unwise to ignore the existence of a subsisting order and to dispose of a proceeding as if no such order is there
|
MAGMA GENERAL INSURANCE CO. LTD Vs. NANU RAM ALIAS CHUHRU RAM | No. 2 -an unmarried sister, the High Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased.The judgment of the High Court is, therefore, affirmed on this count.9.3. With respect to the income of the deceased, as the family could not produce any evidence to show that the income of the deceased was Rs. 15,000 per month, as claimed, the High Court took his income to be Rs. 6,000, which is marginally above the minimum wage of an unskilled worker at Rs. 5,342.This finding is also not being interfered with.9.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son.This contention deserves to be repelled.The deceased was a bachelor, whose mother had pre-deceased him. The deceased?s father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.9.5. The Insurance Company has contended that the High Court had wrongly awarded Rs.1,00,000 towards loss of love and affection,and Rs. 25,000 towards funeral expenses.The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below :?Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.?(Emphasis supplied)As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs.15,000.The amount awarded by the High Court towards loss of love and affection is, however, maintained.9.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).The Motor Vehicles Act is a beneficial and welfare legislation.The Court is duty-bound and entitled to award ?just compensation?, irrespective of whether any plea in that behalf was raised by the Claimant.In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.9.7. A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.In legal parlance, ?consortium? is a compendious term which encompasses ‘spousal consortium?, ‘parental consortium?, and ‘filial consortium?.The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of ?company, society, co-operation, affection, and aid of the other in every conjugal relation.?Parental consortium is granted to the child upon the premature death of a parent, for loss of ?parental aid, protection, affection, society, discipline, guidance and training.?Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra). | 1[ds]Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra). | 1 | 2,755 | 383 | ### 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:
No. 2 -an unmarried sister, the High Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased.The judgment of the High Court is, therefore, affirmed on this count.9.3. With respect to the income of the deceased, as the family could not produce any evidence to show that the income of the deceased was Rs. 15,000 per month, as claimed, the High Court took his income to be Rs. 6,000, which is marginally above the minimum wage of an unskilled worker at Rs. 5,342.This finding is also not being interfered with.9.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son.This contention deserves to be repelled.The deceased was a bachelor, whose mother had pre-deceased him. The deceased?s father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.9.5. The Insurance Company has contended that the High Court had wrongly awarded Rs.1,00,000 towards loss of love and affection,and Rs. 25,000 towards funeral expenses.The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below :?Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.?(Emphasis supplied)As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs.15,000.The amount awarded by the High Court towards loss of love and affection is, however, maintained.9.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).The Motor Vehicles Act is a beneficial and welfare legislation.The Court is duty-bound and entitled to award ?just compensation?, irrespective of whether any plea in that behalf was raised by the Claimant.In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.9.7. A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.In legal parlance, ?consortium? is a compendious term which encompasses ‘spousal consortium?, ‘parental consortium?, and ‘filial consortium?.The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of ?company, society, co-operation, affection, and aid of the other in every conjugal relation.?Parental consortium is granted to the child upon the premature death of a parent, for loss of ?parental aid, protection, affection, society, discipline, guidance and training.?Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra).
### Response:
1
### Explanation:
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child?s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.A few High Courts have awarded compensation on this count However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj) ; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors.2014 (3) UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) respect to the principles on which compensation could be awarded on loss of Filial Consortium.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium? as laid down in Pranay Sethi (supra).
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State of Orissa Vs. M/s Steel Authority of India Ltd | stockpile is made, the same is fed into the primary crusher whereafter it goes to the secondary crusher mechanically. In between the secondary crusher and the screening Plant is affixed the Weighto- meter. From the secondary crusher the Limestone is moved into the screening Plant and from the screening Plant to the stockpile. The stockpile is then transported and loaded into the railway wagons.The Weighto-meter recording mentioned hereinabove, is done as the workmen are paid their incentives on the basis of production. This figure recorded by the Weighto-meter is duly recorded in he books kept by the respondent-company in the regular course of business as "production".The Senior Mining Officer is duly intimated of the weight recorded in the manner as aforesaid.The High Court, after referring to Section 9(1) of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called "the Act") and also clause 3 of Part V of the Lease Deed, held as follows :- "A distinction has to be made between removal from the mine and removal from the leased area. If after the mineral is extracted from the mine, it undergoes some processing and during processing a part of the mineral is wasted and the wastage remains on the leased area and is not removed therefrom, the lessee cannot be asked to pay royalty on that portion of the wastage." On that view of the matter, the High Court quashed the demands, which were levied on the quantity of unprocessed minerals.4. Aggrieved by the order of the High Court, the present appeals are filed by special leave. 5. The learned counsel appearing for the appellants submitted that the High Court was not right in making the distinction and concluding that the quantity of mineral which had undergone certain process alone was liable to levy of royalty. According to the learned counsel, this view runs counter to the view already taken by another Divison Bench of the same High Court in O.J.C. No. 909/74. The further case of the learned counsel was that the judgment in O.J.C. 909/74 was taken on appeal to this Court by the aggrieved assessee in Civil Appeal No. 807/76 [National Coal Development Corporation Ltd. v. State of Orissa & Ors.] and this Court approved the view taken by the High Court and dismissed the said Civil Appeal on 5.12.91. Learned counsel, in support of his argument, placed reliance on the judgments of this Court, namely, India Cement Ltd. & Ors. v. State of Tamil Nadu & ors., [(1990) 1 SCC 12 and Saurashtra Cement and Chemical Industries Ltd. v. Union of India & Anr., [(1994) 1 SCC 226 . Learned counsel appearing for the respondent-assessee supported the judgments under appeal on the basis of the distinction made by the High Court. 6. We have considered the arguments and the reasonings contained in the judgments under appeal. Section 9(1) of the Act reads as follows :- "The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or his agent, manager, employee, contractor or sub-leassee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.It is to be noted that the levy of royalty is in respect of minerals removed or consumed by the contractor from the leased area. We have seen earlier the process that the mineral said to undergo before the same was removed from leased area. Section 9(1) of the Act also contemplates the levy of royalty on the mineral consumed by the holder of a mining lease in the leased area. If that be so, the case of the appellants that such processing amounts to consumption and, therefore, the entire mineral is exigible to levy of royalty has to be accepted. We are unable to agree with the distinction made by the High Court and the conclusion that the royalty can be levied only on the quantity of mineral obtained after processing." 7. Another Division Bench of the Orissa High Court in National Coal Development Corporation case (supra), while considering the question whether the coal extracted by the workmen for their own domestic consumption is exigible levy of royalty, accepting the contention of the Revenue, held that removal from the seam in the mine and extracting the same through the pits mouth to the surface satisfy the requirement of Section 9 in order to give rise to liability for royalty". This view of the High Court found approval by this Court in Civil Appeal No. 807/76 and this Court held that the lessee in that case was liable to pay royalty for the coal supplied to its workmen for consumption. 8. In India Cements case (supra), a Constitution Bench, while considering the constitutionality of levy of cess on the royalty, held as follows :- "In the Western India Theatres Ltd. v. Cantonment Board, Poona Cantonment it was held that an entertainment tax is dependent upon whether there would or would not be a show in the cinema house. If there is no show, there is no tax. It cannot be a tax on profession or calling. Professional tax does not depend on the exercise of ones profession but only concerns itself with the right to practice. It appears that in the instant case also no tax can be levied or is leviable under the impugned Act if no mining activities are carried on. Hence, it is manifest that it is not related to land as a unit which is the only method of valuation of land under Entry 49 List II, but is relatable to minerals extracted. Royalty is payable on a proportion of the minerals extracted ........................................................." 9. For the reasons stated above, we hold that the High Court was not right in quashing the demand, which were rightly calculated and levied. | 1[ds]7. Another Division Bench of the Orissa High Court in National Coal Development Corporation case (supra), while considering the question whether the coal extracted by the workmen for their own domestic consumption is exigible levy of royalty, accepting the contention of the Revenue, held that removal from the seam in the mine and extracting the same through the pits mouth to the surface satisfy the requirement of Section 9 in order to give rise to liability for royalty". This view of the High Court found approval by this Court in Civil Appeal No. 807/76 and this Court held that the lessee in that case was liable to pay royalty for the coal supplied to its workmen for consumption.For the reasons stated above, we hold that the High Court was not right in quashing the demand, which were rightly calculated and levied. | 1 | 1,465 | 157 | ### Instruction:
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stockpile is made, the same is fed into the primary crusher whereafter it goes to the secondary crusher mechanically. In between the secondary crusher and the screening Plant is affixed the Weighto- meter. From the secondary crusher the Limestone is moved into the screening Plant and from the screening Plant to the stockpile. The stockpile is then transported and loaded into the railway wagons.The Weighto-meter recording mentioned hereinabove, is done as the workmen are paid their incentives on the basis of production. This figure recorded by the Weighto-meter is duly recorded in he books kept by the respondent-company in the regular course of business as "production".The Senior Mining Officer is duly intimated of the weight recorded in the manner as aforesaid.The High Court, after referring to Section 9(1) of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called "the Act") and also clause 3 of Part V of the Lease Deed, held as follows :- "A distinction has to be made between removal from the mine and removal from the leased area. If after the mineral is extracted from the mine, it undergoes some processing and during processing a part of the mineral is wasted and the wastage remains on the leased area and is not removed therefrom, the lessee cannot be asked to pay royalty on that portion of the wastage." On that view of the matter, the High Court quashed the demands, which were levied on the quantity of unprocessed minerals.4. Aggrieved by the order of the High Court, the present appeals are filed by special leave. 5. The learned counsel appearing for the appellants submitted that the High Court was not right in making the distinction and concluding that the quantity of mineral which had undergone certain process alone was liable to levy of royalty. According to the learned counsel, this view runs counter to the view already taken by another Divison Bench of the same High Court in O.J.C. No. 909/74. The further case of the learned counsel was that the judgment in O.J.C. 909/74 was taken on appeal to this Court by the aggrieved assessee in Civil Appeal No. 807/76 [National Coal Development Corporation Ltd. v. State of Orissa & Ors.] and this Court approved the view taken by the High Court and dismissed the said Civil Appeal on 5.12.91. Learned counsel, in support of his argument, placed reliance on the judgments of this Court, namely, India Cement Ltd. & Ors. v. State of Tamil Nadu & ors., [(1990) 1 SCC 12 and Saurashtra Cement and Chemical Industries Ltd. v. Union of India & Anr., [(1994) 1 SCC 226 . Learned counsel appearing for the respondent-assessee supported the judgments under appeal on the basis of the distinction made by the High Court. 6. We have considered the arguments and the reasonings contained in the judgments under appeal. Section 9(1) of the Act reads as follows :- "The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or his agent, manager, employee, contractor or sub-leassee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.It is to be noted that the levy of royalty is in respect of minerals removed or consumed by the contractor from the leased area. We have seen earlier the process that the mineral said to undergo before the same was removed from leased area. Section 9(1) of the Act also contemplates the levy of royalty on the mineral consumed by the holder of a mining lease in the leased area. If that be so, the case of the appellants that such processing amounts to consumption and, therefore, the entire mineral is exigible to levy of royalty has to be accepted. We are unable to agree with the distinction made by the High Court and the conclusion that the royalty can be levied only on the quantity of mineral obtained after processing." 7. Another Division Bench of the Orissa High Court in National Coal Development Corporation case (supra), while considering the question whether the coal extracted by the workmen for their own domestic consumption is exigible levy of royalty, accepting the contention of the Revenue, held that removal from the seam in the mine and extracting the same through the pits mouth to the surface satisfy the requirement of Section 9 in order to give rise to liability for royalty". This view of the High Court found approval by this Court in Civil Appeal No. 807/76 and this Court held that the lessee in that case was liable to pay royalty for the coal supplied to its workmen for consumption. 8. In India Cements case (supra), a Constitution Bench, while considering the constitutionality of levy of cess on the royalty, held as follows :- "In the Western India Theatres Ltd. v. Cantonment Board, Poona Cantonment it was held that an entertainment tax is dependent upon whether there would or would not be a show in the cinema house. If there is no show, there is no tax. It cannot be a tax on profession or calling. Professional tax does not depend on the exercise of ones profession but only concerns itself with the right to practice. It appears that in the instant case also no tax can be levied or is leviable under the impugned Act if no mining activities are carried on. Hence, it is manifest that it is not related to land as a unit which is the only method of valuation of land under Entry 49 List II, but is relatable to minerals extracted. Royalty is payable on a proportion of the minerals extracted ........................................................." 9. For the reasons stated above, we hold that the High Court was not right in quashing the demand, which were rightly calculated and levied.
### Response:
1
### Explanation:
7. Another Division Bench of the Orissa High Court in National Coal Development Corporation case (supra), while considering the question whether the coal extracted by the workmen for their own domestic consumption is exigible levy of royalty, accepting the contention of the Revenue, held that removal from the seam in the mine and extracting the same through the pits mouth to the surface satisfy the requirement of Section 9 in order to give rise to liability for royalty". This view of the High Court found approval by this Court in Civil Appeal No. 807/76 and this Court held that the lessee in that case was liable to pay royalty for the coal supplied to its workmen for consumption.For the reasons stated above, we hold that the High Court was not right in quashing the demand, which were rightly calculated and levied.
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M/S.Rashtriya Chemicals & Ferts. Ltd Vs. M/S.Chowgule Brothers | determination, yet it is equally true that the Arbitrators have no jurisdiction to make an award against the specific terms of the contract executed between the parties. Reference may be made, in this regard, to the decision of this Court in Steel Authority of India Ltd. v. J.C. Budharaja, Government and Mining Contractor, (1999) 8 SCC 122 where this Court observed : " ........ that it is settled law that the arbitrator derives authority from the contract and if he acts in manifest disregard of the contract, the award given by him would be an arbitrary one; that this deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part, but it may tantamount to mala fide action......"...... It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However, in cases where there is no question of interpretation of any term of the contract, but of solely reading the same as it is and still the arbitrator ignores it and awards the amount despite the prohibition in the agreement, the award would be arbitrary, capricious and without jurisdiction. Whether the arbitrator has acted beyond the terms of the contract or has travelled beyond his jurisdiction would depend upon facts, which however would be jurisdictional facts, and are required to be gone into by the court. The arbitrator may have jurisdiction to entertain claim and yet he may not have jurisdiction to pass award for particular items in view of the prohibition contained in the contract and, in such cases, it would be a jurisdictional error...." 17. It was further observed: ".....Further, the Arbitration Act does not give any power to the arbitrator to act arbitrarily or capriciously. His existence depends upon the agreement and his function is to act within the limits of the said agreement....." 18. In W.B. State Warehousing Corporation & Anr. v. Sushil Kumar Kayan & Ors. (2002) 5 SCC 679 , again this Court observed: "....... If there is a specific term in the contract or the law which does not permit the parties to raise a point before the arbitrator and if there is a specific bar in the contract to the raising of the point, then the award passed by the arbitrator in respect thereof would be in excess of his jurisdiction...." 19. In Bharat Coking Coal Ltd. v. Annapurna Construction (2003) 8 SCC 154 , this Court reiterated the legal position in the following words: "There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record." 20. In MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 9 SCC 619 also this Court took the similar view and observed: "An Arbitral Tribunal is not a court of law. Its orders are not judicial orders. Its functions are not judicial functions. It cannot exercise its power ex debito justitiae. The jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which may be the subject- matter of reference. 21 Reference may also be made to the decisions of this Court in Associated Engineering Co. v. Government of Andhra Pradesh & Anr. (AIR 1992 SC 232 ), Jivarajbhai Ujamshi Sheth & Ors. v. Chintamanrao Balaji & Ors. (AIR 1965 SC 214 ), State of Rajasthan v. Nav Bharat Construction Co. (AIR 2005 SC 4430 ), Food Corporation of India v. Surendra, Devendra & Mahendra Transport Co. (2003) 4 SCC 80 , which sufficiently settle the law on the subject. 22. That leaves us with the question whether the valid part of the award can be saved by severance from the invalid part. Before the Arbitrators the respondent-Chairman had quantified the claim at Rs.27,91,984.29 on account of escalation of the rates consequent upon statutory increases in the wages of M.D.L.B. during the extended period of contract. A further sum of Rs.9,88,713.20 on account of escalation in the wages of other categories of workers such as Tally Clerks, Stichers, Foreman, Asst. Foremen, Supervisors etc. was also made on the same basis. In addition, a claim for the recovery of Rs.8,63,953/- towards the final payment due and payable to the claimant with interest @ 18% p.a. on the same was also made.23. In the light of the discussions in the earlier part of this order the entitlement of the respondent to claim any amount on account of escalation consequent upon the increase in the wages of M.D.L.B. workers is not established. The first two claims mentioned above on account of escalation could not, therefore, have been allowed by the Arbitrators nor could the incidental claim for payment of interest on that claim be granted. The question then is whether there is any lawful justification for disallowing the only other claim made by the respondents representing the balance amount due to the claimant towards its final bill. The only defence which the appellant had offered to that claim was based on the law of limitation. That defence having been withdrawn by Mr. Divan, we see no real justification for disallowing the said claim especially when the counter-claim made by the appellant has been rejected and the said rejection was not questioned before the High Court. In fairness to Mr. Divan we must record that he did not seriously oppose the severance of the award made by the Arbitrators so as to separate the inadmissible part of the claim based on an interpretation of Clause 2.03 from the admissible part. | 1[ds]10. A careful reading of the above especially the Note appended to Clause 2.03 (supra) leaves no manner of doubt that the rate at which the contract was initially awarded was to remain firm throughout the period of one year from the date of the award of the contract. What is significant is that for the first year the said rate was unalterable regardless of any escalation, revision or other statutory increases made during that period. Shri Ganesh, learned counsel for the respondents also fairly conceded that insofar as the first year of the contract was concerned the rates were not subject to any revision and were to remain firm. If that be so, the question is how far is that principle altered by the later half of the Note which deals with the rates applicable during the extended period of the contract. There are three different aspects which stand out from a reading of that part of the Note to Clause 2.03. Firstly, the second part of the Note dealing with the rates applicable to the extended period starts with the word `Similarly. By using that expression the Note draws an analogy between the firmness of the rates applicable during the first year and those applicable for the extended period of second year. The sentiment underlying the Note is that the parties intend to keep the applicable rates firm not only for the first year but also for the second year.11. The second aspect which emerges from a plain reading of the Note is that the rates for the second year had to be fixed by taking into consideration the statutory increases, if any, in the wages payable to the Dock labourers which rate once fixed was also to remain firm and impervious to any escalation. The only difference between the first and the second year rates thus is that the rates were firm even for the second year but the same had to be fixed taking into consideration the statutory increases in the wages of the dock labourers.12. The third aspect which in our opinion puts all doubts about the true intention of the parties to rest is that any subsequent increase in the wages of the dock labourers would not result in any escalation of the rates even when such revision is allowed retrospectively by the M.D.L.B. What the Note in our opinion envisages is that on the completion of the first year and at the beginning of the extended contract period, the rates applicable shall have to be determined by reference to the revisions that have already come into effect as on the date of the commencement of the extended period. It is manifest from a reading of the Note that once an option is exercised the rate applicable to the extended period shall stand revised taking into consideration the revision of wages if any. Any such revision must of necessity be made as on the date of the commencement of the extended period. Once that is done the said rate would remain firm till the end of the second year. The contract does not, in our opinion, envisage settlement or revision of the rate by reference to any stage post commencement of the extended period. Even otherwise a contract for the extended period could become effective only if rates applicable to that period are settled or are capable of being ascertained. Rates actually determined or determinable by reference to 15th January, 1984 the date when the extended period commenced, could include revision in wages made upto that date. Any revision in the wages of the dock labourers which the M.D.L.B. may have ordered subsequent to 15th January, 1984 would have no relevance even if such revision was made retrospectively from the date of the commencement of the extended period. The Note makes it abundantly clear that revision granted retrospectively would be of no consequence whatsoever.13. There is another angle from which the matter can be viewed. As to how the parties understood Clause 2.03 is also an important factor that needs to be kept in mind. While accepting the extension of the contract, thehad simply referred to the statutory revision in the wages by M.D.L.B. during the `last year. Since the letter of acceptance is of 7th December, 1983 the statutory revision which the contractor wanted to be taken into consideration were revisions before 1983 and not those made at any time after the extended period of contract.The learned Single Judge of the High Court was, in the light of the above, correct in holding that the award made by the Arbitrators to the extent it directed payment of the additional amount was unsustainable. The Division Bench, however, fell in error in taking a contrary view and holding that the interpretation placed by the Arbitrators was a plausible interpretation.16. That brings us to the question whetheran Arbitrator can make an award contrary to the terms of the contract executed between theparties. That question is no longer res integra having been settled by a long line of decisions of this Court. While it is true that the Courts show deference to the findings of fact recorded by the Arbitrators and even opinions, if any, expressed on questions of law referred to them for determination, yet it is equally true that the Arbitrators have no jurisdiction to make an award against the specific terms of the contract executed between thethe Arbitrators thehad quantified the claim at Rs.27,91,984.29 on account of escalation of the rates consequent upon statutory increases in the wages of M.D.L.B. during the extended period ofcontract. A further sum of Rs.9,88,713.20 on account of escalation in the wages of other categories of workers such as Tally Clerks, Stichers, Foreman, Asst. Foremen, Supervisors etc. was also made on the same basis. In addition, a claim for the recovery of Rs.8,63,953/towards the final payment due and payable to the claimant with interest @ 18% p.a. on the same was also made.23. In the light of the discussions in the earlier part of this order the entitlement of the respondent to claim any amount on account of escalation consequent upon the increase in the wages of M.D.L.B. workers is not established. The first two claims mentioned above on account of escalation could not, therefore, have been allowed by the Arbitrators nor could the incidental claim for payment of interest on that claim be granted. The question then is whetherthere is any lawful justification for disallowing the only other claim made by the respondents representing the balance amount due to the claimant towards its finalbill. The only defence which the appellant had offered to that claim was based on the law of limitation. That defence having been withdrawn by Mr. Divan, we see no real justification for disallowing the said claim especially when themade by the appellant has been rejected and the said rejection was not questioned before the High Court. In fairness to Mr. Divan we must record that he did not seriously oppose the severance of the award made by the Arbitrators so as to separate the inadmissible part of the claim based on an interpretation of Clause 2.03 from the admissible part. | 1 | 3,900 | 1,278 | ### Instruction:
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determination, yet it is equally true that the Arbitrators have no jurisdiction to make an award against the specific terms of the contract executed between the parties. Reference may be made, in this regard, to the decision of this Court in Steel Authority of India Ltd. v. J.C. Budharaja, Government and Mining Contractor, (1999) 8 SCC 122 where this Court observed : " ........ that it is settled law that the arbitrator derives authority from the contract and if he acts in manifest disregard of the contract, the award given by him would be an arbitrary one; that this deliberate departure from the contract amounts not only to manifest disregard of the authority or misconduct on his part, but it may tantamount to mala fide action......"...... It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However, in cases where there is no question of interpretation of any term of the contract, but of solely reading the same as it is and still the arbitrator ignores it and awards the amount despite the prohibition in the agreement, the award would be arbitrary, capricious and without jurisdiction. Whether the arbitrator has acted beyond the terms of the contract or has travelled beyond his jurisdiction would depend upon facts, which however would be jurisdictional facts, and are required to be gone into by the court. The arbitrator may have jurisdiction to entertain claim and yet he may not have jurisdiction to pass award for particular items in view of the prohibition contained in the contract and, in such cases, it would be a jurisdictional error...." 17. It was further observed: ".....Further, the Arbitration Act does not give any power to the arbitrator to act arbitrarily or capriciously. His existence depends upon the agreement and his function is to act within the limits of the said agreement....." 18. In W.B. State Warehousing Corporation & Anr. v. Sushil Kumar Kayan & Ors. (2002) 5 SCC 679 , again this Court observed: "....... If there is a specific term in the contract or the law which does not permit the parties to raise a point before the arbitrator and if there is a specific bar in the contract to the raising of the point, then the award passed by the arbitrator in respect thereof would be in excess of his jurisdiction...." 19. In Bharat Coking Coal Ltd. v. Annapurna Construction (2003) 8 SCC 154 , this Court reiterated the legal position in the following words: "There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record." 20. In MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 9 SCC 619 also this Court took the similar view and observed: "An Arbitral Tribunal is not a court of law. Its orders are not judicial orders. Its functions are not judicial functions. It cannot exercise its power ex debito justitiae. The jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which may be the subject- matter of reference. 21 Reference may also be made to the decisions of this Court in Associated Engineering Co. v. Government of Andhra Pradesh & Anr. (AIR 1992 SC 232 ), Jivarajbhai Ujamshi Sheth & Ors. v. Chintamanrao Balaji & Ors. (AIR 1965 SC 214 ), State of Rajasthan v. Nav Bharat Construction Co. (AIR 2005 SC 4430 ), Food Corporation of India v. Surendra, Devendra & Mahendra Transport Co. (2003) 4 SCC 80 , which sufficiently settle the law on the subject. 22. That leaves us with the question whether the valid part of the award can be saved by severance from the invalid part. Before the Arbitrators the respondent-Chairman had quantified the claim at Rs.27,91,984.29 on account of escalation of the rates consequent upon statutory increases in the wages of M.D.L.B. during the extended period of contract. A further sum of Rs.9,88,713.20 on account of escalation in the wages of other categories of workers such as Tally Clerks, Stichers, Foreman, Asst. Foremen, Supervisors etc. was also made on the same basis. In addition, a claim for the recovery of Rs.8,63,953/- towards the final payment due and payable to the claimant with interest @ 18% p.a. on the same was also made.23. In the light of the discussions in the earlier part of this order the entitlement of the respondent to claim any amount on account of escalation consequent upon the increase in the wages of M.D.L.B. workers is not established. The first two claims mentioned above on account of escalation could not, therefore, have been allowed by the Arbitrators nor could the incidental claim for payment of interest on that claim be granted. The question then is whether there is any lawful justification for disallowing the only other claim made by the respondents representing the balance amount due to the claimant towards its final bill. The only defence which the appellant had offered to that claim was based on the law of limitation. That defence having been withdrawn by Mr. Divan, we see no real justification for disallowing the said claim especially when the counter-claim made by the appellant has been rejected and the said rejection was not questioned before the High Court. In fairness to Mr. Divan we must record that he did not seriously oppose the severance of the award made by the Arbitrators so as to separate the inadmissible part of the claim based on an interpretation of Clause 2.03 from the admissible part.
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### Explanation:
of the rates applicable during the first year and those applicable for the extended period of second year. The sentiment underlying the Note is that the parties intend to keep the applicable rates firm not only for the first year but also for the second year.11. The second aspect which emerges from a plain reading of the Note is that the rates for the second year had to be fixed by taking into consideration the statutory increases, if any, in the wages payable to the Dock labourers which rate once fixed was also to remain firm and impervious to any escalation. The only difference between the first and the second year rates thus is that the rates were firm even for the second year but the same had to be fixed taking into consideration the statutory increases in the wages of the dock labourers.12. The third aspect which in our opinion puts all doubts about the true intention of the parties to rest is that any subsequent increase in the wages of the dock labourers would not result in any escalation of the rates even when such revision is allowed retrospectively by the M.D.L.B. What the Note in our opinion envisages is that on the completion of the first year and at the beginning of the extended contract period, the rates applicable shall have to be determined by reference to the revisions that have already come into effect as on the date of the commencement of the extended period. It is manifest from a reading of the Note that once an option is exercised the rate applicable to the extended period shall stand revised taking into consideration the revision of wages if any. Any such revision must of necessity be made as on the date of the commencement of the extended period. Once that is done the said rate would remain firm till the end of the second year. The contract does not, in our opinion, envisage settlement or revision of the rate by reference to any stage post commencement of the extended period. Even otherwise a contract for the extended period could become effective only if rates applicable to that period are settled or are capable of being ascertained. Rates actually determined or determinable by reference to 15th January, 1984 the date when the extended period commenced, could include revision in wages made upto that date. Any revision in the wages of the dock labourers which the M.D.L.B. may have ordered subsequent to 15th January, 1984 would have no relevance even if such revision was made retrospectively from the date of the commencement of the extended period. The Note makes it abundantly clear that revision granted retrospectively would be of no consequence whatsoever.13. There is another angle from which the matter can be viewed. As to how the parties understood Clause 2.03 is also an important factor that needs to be kept in mind. While accepting the extension of the contract, thehad simply referred to the statutory revision in the wages by M.D.L.B. during the `last year. Since the letter of acceptance is of 7th December, 1983 the statutory revision which the contractor wanted to be taken into consideration were revisions before 1983 and not those made at any time after the extended period of contract.The learned Single Judge of the High Court was, in the light of the above, correct in holding that the award made by the Arbitrators to the extent it directed payment of the additional amount was unsustainable. The Division Bench, however, fell in error in taking a contrary view and holding that the interpretation placed by the Arbitrators was a plausible interpretation.16. That brings us to the question whetheran Arbitrator can make an award contrary to the terms of the contract executed between theparties. That question is no longer res integra having been settled by a long line of decisions of this Court. While it is true that the Courts show deference to the findings of fact recorded by the Arbitrators and even opinions, if any, expressed on questions of law referred to them for determination, yet it is equally true that the Arbitrators have no jurisdiction to make an award against the specific terms of the contract executed between thethe Arbitrators thehad quantified the claim at Rs.27,91,984.29 on account of escalation of the rates consequent upon statutory increases in the wages of M.D.L.B. during the extended period ofcontract. A further sum of Rs.9,88,713.20 on account of escalation in the wages of other categories of workers such as Tally Clerks, Stichers, Foreman, Asst. Foremen, Supervisors etc. was also made on the same basis. In addition, a claim for the recovery of Rs.8,63,953/towards the final payment due and payable to the claimant with interest @ 18% p.a. on the same was also made.23. In the light of the discussions in the earlier part of this order the entitlement of the respondent to claim any amount on account of escalation consequent upon the increase in the wages of M.D.L.B. workers is not established. The first two claims mentioned above on account of escalation could not, therefore, have been allowed by the Arbitrators nor could the incidental claim for payment of interest on that claim be granted. The question then is whetherthere is any lawful justification for disallowing the only other claim made by the respondents representing the balance amount due to the claimant towards its finalbill. The only defence which the appellant had offered to that claim was based on the law of limitation. That defence having been withdrawn by Mr. Divan, we see no real justification for disallowing the said claim especially when themade by the appellant has been rejected and the said rejection was not questioned before the High Court. In fairness to Mr. Divan we must record that he did not seriously oppose the severance of the award made by the Arbitrators so as to separate the inadmissible part of the claim based on an interpretation of Clause 2.03 from the admissible part.
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Ponnaiyah Ramajayam Institute of Medical Sciences Vs. Union of India & Another | pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline.(E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned." 20. As the findings in the inspections conducted by the MCI on 29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents, OPD attendance, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and as recommended by the Central Government, a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the following features: a) The college had accepted that seven faculty and eleven residents were deficient on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemed to be making earnest efforts to increase patient load.e) The contention of the college that delivery patients were hard to get in private hospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase in number of patients due to various disease factors, post cyclone. 22. In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by the petitioner/college, the decision to debar it from admitting students in the MBBS course for the next two academic years 2017-18 and 2018-19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise of power of judicial review and the extent to which it has to be done would vary from case to case and would depend, amongst others on the factual projections. The following observations to this effect in the above decision succinctly adumbrates this postulation: "50.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible." 24. Thus, in exercise of power of judicial review, re-appreciation of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspections conducted by the MCI as noted by the Hearing Committee as well as the rival assertions vis-a-vis the same, it is not possible to readily discard the eventual findings recorded by the Hearing Committee and in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health. 25. In Royal Medical Trust (supra) again, this Court while responding to the assailment of the order impugned therein to be bereft of reasons, enunciated that the order passed has to be appreciated in its entirety and neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. It was observed that the order must reflect application of mind and should indicate reasons. The plea based on want of reasons was negated. 26. In any view of the matter, the respondents are the best judge to assess the findings in the inspection reports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of health facilities in the public sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons. | 1[ds]20. As thein the inspectionsby the MCI on29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents,, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and ashe Central Government,a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the followingThe college had accepted that seven faculty and elevennt on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemedmaking earnest efforts to increase patient load.e) The contention of the college that deliverye hard to get in privatehospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase ints due to various disease factors, post cyclone.In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by theon to debar it from admittinghe MBBS course for the next two academic years19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise ofal review and the extent to which it hasne would vary from case to case and would depend, amongst others on the factual projections.Thus, in exercise ofon of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspectionsby the MCId by theHearing Committee as well as the rival assertionsthe same, it is not possible to readily discard the eventual findingshe Hearing Committeeand in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health.In any view of the matter, the respondents are the best judge to assess thein the inspectionreports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of healthlic sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons. | 1 | 4,732 | 639 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline.(E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned." 20. As the findings in the inspections conducted by the MCI on 29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents, OPD attendance, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and as recommended by the Central Government, a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the following features: a) The college had accepted that seven faculty and eleven residents were deficient on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemed to be making earnest efforts to increase patient load.e) The contention of the college that delivery patients were hard to get in private hospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase in number of patients due to various disease factors, post cyclone. 22. In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by the petitioner/college, the decision to debar it from admitting students in the MBBS course for the next two academic years 2017-18 and 2018-19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise of power of judicial review and the extent to which it has to be done would vary from case to case and would depend, amongst others on the factual projections. The following observations to this effect in the above decision succinctly adumbrates this postulation: "50.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible." 24. Thus, in exercise of power of judicial review, re-appreciation of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspections conducted by the MCI as noted by the Hearing Committee as well as the rival assertions vis-a-vis the same, it is not possible to readily discard the eventual findings recorded by the Hearing Committee and in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health. 25. In Royal Medical Trust (supra) again, this Court while responding to the assailment of the order impugned therein to be bereft of reasons, enunciated that the order passed has to be appreciated in its entirety and neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. It was observed that the order must reflect application of mind and should indicate reasons. The plea based on want of reasons was negated. 26. In any view of the matter, the respondents are the best judge to assess the findings in the inspection reports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of health facilities in the public sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons.
### Response:
1
### Explanation:
20. As thein the inspectionsby the MCI on29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents,, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and ashe Central Government,a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the followingThe college had accepted that seven faculty and elevennt on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemedmaking earnest efforts to increase patient load.e) The contention of the college that deliverye hard to get in privatehospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase ints due to various disease factors, post cyclone.In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by theon to debar it from admittinghe MBBS course for the next two academic years19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise ofal review and the extent to which it hasne would vary from case to case and would depend, amongst others on the factual projections.Thus, in exercise ofon of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspectionsby the MCId by theHearing Committee as well as the rival assertionsthe same, it is not possible to readily discard the eventual findingshe Hearing Committeeand in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health.In any view of the matter, the respondents are the best judge to assess thein the inspectionreports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of healthlic sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons.
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T. R. Sharma Vs. Prithvi Singh & Anr. Etc | it be otherwise provided in these Rules, a Government servant on substantive appoint appointment to any permanent post acquires a lien on that post and cases to hold any lien previously acquired on any other post. E,3.14. (a) A competent authority shall suspend the lien of a Government servant on a permanent. post which he holds substantively; if he is appointed in a substantive capacity.(1) ............ ...... ......(2) to a permanent post outside the cadre on which he is borne, or(3) ............. ...... .... ........ ...... ............ ...... ...... .3.15. (a) Except as provided in clause (c) of this rule and in note under rule 3.13, a Government servants lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.(b) In a case covered by sub-clause (2) of clause (a) of rule 3.14 the suspended lien may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service.(c) Notwithstanding the provisions of rule 3.14(a), the r lien of a Government servant holding substantively a permanent post shall be terminated while on refused leave granted after the date of compulsory retirement under rule 8.21; or on his appointment substantively to the post of Chief Engineer of the Public Works Department.Note.-In a case covered by rule 3.14(a)(2), where a Government servant is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne, rule 3.15(b) precludes permanently the termination of his suspended lien unless and until a written request to this effect is received from him. The result is that it is possible for such a Government servant to stop his suspended lien being removed from the parent cadre indefinitely and, thus cause inconvenience to the parent office. Such a situation may be met by appropriate executive action being taken by the controlling officer who may re fuse his consent to such a Government servant being can firmed or retained in a permanent post outside his cadre unless he agrees to his lien on a permanent post in his parent office being terminated."The learned Judges constituting the majority of the Full Bench 3: in holding that the appellants lien on the post of Agricultural Inspector had stood terminated relied upon rule 3.12. Perusal of the above rule shows that normally a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. The opening words of the above rule, however, show that it would apply unless it be otherwise provided in the rules. Rule 3.14(a)(2) carves out an exception to the general rule contained in rule 3.12. According to rule 3.14(a)(2), a competent authority shall suspend the lien of a Government servant on a permanent post. which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. When the appellant was appointed was Block Development and Panchayat officer in a substantive permanent capacity, his case squarely fell within the ambit of rule 3.14(a)(2) as the post of Block Development and Panchayat officer was outside the cadre of Agricultural Inspectors to which the appellant belonged: In the circumstances, it was imperative for the competent authority to suspend the lien of the appellant on the permanent post of Agricultural Inspector which he had held substantively. The competent authority, however, failed to suspend the lien of the appellant on the post of Agricultural Inspect or. The appellant plainly cannot suffer because of such inaction or omission on the part of the competent authority. A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word " shall" in clause (a) as against the use of the word "may" in clause (b) of that rule. The appellant, in our opinion, cannot be penalised because of the omission of the competent authority to it in accordance with the mandatory provisions of rule 3.14 (a)(2). Clause (b) of rule 3.15 also makes it clear that in a case covered by sub-clause (2) of clause (a) of rule 3.14, the suspended lien of the Government servant concerned may not, except on the written request of that Government servant, be terminated while he remains in Government service. The note to rule 3.15 shows a way out in case any difficulty is experienced on account of the operation of rule 3.14(a) (2). It is nobodys case that any written request was made by the appellant for terminating his suspended lien on the post of Agricultural Inspector. As such, we find it difficult to uphold the finding of the majority of the learned Judges that the. lien of the appellant on the post of Agricultural Inspector had stood terminated. In our opinion, the third Judge who was in the minority took a correct view of the matter when he observed that the Government servant is not to be penalised and cannot be deprived of the safeguards provided by rule 3.14 because of the fact that the competent authority had not taken the necessary steps.As the Governor has deconfirmed the appellant from the post of Block Development and Panchayat officer, the suspended lien of the appellant on the post o f Agricultural Inspector would stand revived with effect from February 26, 1969. The promotion of the appellant in the parent Agricultural Department from the post of Agricultural Inspector to that of District Agricultural officer by the impugned order cannot in the circumstances be held to suffer from any legal infirmity. | 1[ds]After hearing the learned counsel for the parties, we are of the opinion that there is considerable merit in the contention of Mr.of the above rule shows that normally a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. The opening words of the above rule, however, show that it would apply unless it be otherwise provided in the rules. Rule 3.14(a)(2) carves out an exception to the general rule contained in rule 3.12. According to rule 3.14(a)(2), a competent authority shall suspend the lien of a Government servant on a permanent post. which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. When the appellant was appointed was Block Development and Panchayat officer in a substantive permanent capacity, his case squarely fell within the ambit of rule 3.14(a)(2) as the post of Block Development and Panchayat officer was outside the cadre of Agricultural Inspectors to which the appellant belonged: In the circumstances, it was imperative for the competent authority to suspend the lien of the appellant on the permanent post of Agricultural Inspector which he had held substantively. The competent authority, however, failed to suspend the lien of the appellant on the post of Agricultural Inspect or. The appellant plainly cannot suffer because of such inaction or omission on the part of the competent authority. A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word " shall" in clause (a) as against the use of the word "may" in clause (b) of that rule. The appellant, in our opinion, cannot be penalised because of the omission of the competent authority to it in accordance with the mandatory provisions of rule 3.14 (a)(2). Clause (b) of rule 3.15 also makes it clear that in a case covered by sub-clause (2) of clause (a) of rule 3.14, the suspended lien of the Government servant concerned may not, except on the written request of that Government servant, be terminated while he remains in Government service. The note to rule 3.15 shows a way out in case any difficulty is experienced on account of the operation of rule 3.14(a) (2). It is nobodys case that any written request was made by the appellant for terminating his suspended lien on the post of Agricultural Inspector. As such, we find it difficult to uphold the finding of the majority of the learned Judges that the. lien of the appellant on the post of Agricultural Inspector had stood terminated. In our opinion, the third Judge who was in the minority took a correct view of the matter when he observed that the Government servant is not to be penalised and cannot be deprived of the safeguards provided by rule 3.14 because of the fact that the competent authority had not taken the necessary steps.As the Governor has deconfirmed the appellant from the post of Block Development and Panchayat officer, the suspended lien of the appellant on the post o f Agricultural Inspector would stand revived with effect from February 26, 1969. The promotion of the appellant in the parent Agricultural Department from the post of Agricultural Inspector to that of District Agricultural officer by the impugned order cannot in the circumstances be held to suffer from any legal infirmity. | 1 | 2,183 | 708 | ### 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 be otherwise provided in these Rules, a Government servant on substantive appoint appointment to any permanent post acquires a lien on that post and cases to hold any lien previously acquired on any other post. E,3.14. (a) A competent authority shall suspend the lien of a Government servant on a permanent. post which he holds substantively; if he is appointed in a substantive capacity.(1) ............ ...... ......(2) to a permanent post outside the cadre on which he is borne, or(3) ............. ...... .... ........ ...... ............ ...... ...... .3.15. (a) Except as provided in clause (c) of this rule and in note under rule 3.13, a Government servants lien on a post may, in no circumstances, be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.(b) In a case covered by sub-clause (2) of clause (a) of rule 3.14 the suspended lien may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service.(c) Notwithstanding the provisions of rule 3.14(a), the r lien of a Government servant holding substantively a permanent post shall be terminated while on refused leave granted after the date of compulsory retirement under rule 8.21; or on his appointment substantively to the post of Chief Engineer of the Public Works Department.Note.-In a case covered by rule 3.14(a)(2), where a Government servant is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne, rule 3.15(b) precludes permanently the termination of his suspended lien unless and until a written request to this effect is received from him. The result is that it is possible for such a Government servant to stop his suspended lien being removed from the parent cadre indefinitely and, thus cause inconvenience to the parent office. Such a situation may be met by appropriate executive action being taken by the controlling officer who may re fuse his consent to such a Government servant being can firmed or retained in a permanent post outside his cadre unless he agrees to his lien on a permanent post in his parent office being terminated."The learned Judges constituting the majority of the Full Bench 3: in holding that the appellants lien on the post of Agricultural Inspector had stood terminated relied upon rule 3.12. Perusal of the above rule shows that normally a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. The opening words of the above rule, however, show that it would apply unless it be otherwise provided in the rules. Rule 3.14(a)(2) carves out an exception to the general rule contained in rule 3.12. According to rule 3.14(a)(2), a competent authority shall suspend the lien of a Government servant on a permanent post. which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. When the appellant was appointed was Block Development and Panchayat officer in a substantive permanent capacity, his case squarely fell within the ambit of rule 3.14(a)(2) as the post of Block Development and Panchayat officer was outside the cadre of Agricultural Inspectors to which the appellant belonged: In the circumstances, it was imperative for the competent authority to suspend the lien of the appellant on the permanent post of Agricultural Inspector which he had held substantively. The competent authority, however, failed to suspend the lien of the appellant on the post of Agricultural Inspect or. The appellant plainly cannot suffer because of such inaction or omission on the part of the competent authority. A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word " shall" in clause (a) as against the use of the word "may" in clause (b) of that rule. The appellant, in our opinion, cannot be penalised because of the omission of the competent authority to it in accordance with the mandatory provisions of rule 3.14 (a)(2). Clause (b) of rule 3.15 also makes it clear that in a case covered by sub-clause (2) of clause (a) of rule 3.14, the suspended lien of the Government servant concerned may not, except on the written request of that Government servant, be terminated while he remains in Government service. The note to rule 3.15 shows a way out in case any difficulty is experienced on account of the operation of rule 3.14(a) (2). It is nobodys case that any written request was made by the appellant for terminating his suspended lien on the post of Agricultural Inspector. As such, we find it difficult to uphold the finding of the majority of the learned Judges that the. lien of the appellant on the post of Agricultural Inspector had stood terminated. In our opinion, the third Judge who was in the minority took a correct view of the matter when he observed that the Government servant is not to be penalised and cannot be deprived of the safeguards provided by rule 3.14 because of the fact that the competent authority had not taken the necessary steps.As the Governor has deconfirmed the appellant from the post of Block Development and Panchayat officer, the suspended lien of the appellant on the post o f Agricultural Inspector would stand revived with effect from February 26, 1969. The promotion of the appellant in the parent Agricultural Department from the post of Agricultural Inspector to that of District Agricultural officer by the impugned order cannot in the circumstances be held to suffer from any legal infirmity.
### Response:
1
### Explanation:
After hearing the learned counsel for the parties, we are of the opinion that there is considerable merit in the contention of Mr.of the above rule shows that normally a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. The opening words of the above rule, however, show that it would apply unless it be otherwise provided in the rules. Rule 3.14(a)(2) carves out an exception to the general rule contained in rule 3.12. According to rule 3.14(a)(2), a competent authority shall suspend the lien of a Government servant on a permanent post. which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. When the appellant was appointed was Block Development and Panchayat officer in a substantive permanent capacity, his case squarely fell within the ambit of rule 3.14(a)(2) as the post of Block Development and Panchayat officer was outside the cadre of Agricultural Inspectors to which the appellant belonged: In the circumstances, it was imperative for the competent authority to suspend the lien of the appellant on the permanent post of Agricultural Inspector which he had held substantively. The competent authority, however, failed to suspend the lien of the appellant on the post of Agricultural Inspect or. The appellant plainly cannot suffer because of such inaction or omission on the part of the competent authority. A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word " shall" in clause (a) as against the use of the word "may" in clause (b) of that rule. The appellant, in our opinion, cannot be penalised because of the omission of the competent authority to it in accordance with the mandatory provisions of rule 3.14 (a)(2). Clause (b) of rule 3.15 also makes it clear that in a case covered by sub-clause (2) of clause (a) of rule 3.14, the suspended lien of the Government servant concerned may not, except on the written request of that Government servant, be terminated while he remains in Government service. The note to rule 3.15 shows a way out in case any difficulty is experienced on account of the operation of rule 3.14(a) (2). It is nobodys case that any written request was made by the appellant for terminating his suspended lien on the post of Agricultural Inspector. As such, we find it difficult to uphold the finding of the majority of the learned Judges that the. lien of the appellant on the post of Agricultural Inspector had stood terminated. In our opinion, the third Judge who was in the minority took a correct view of the matter when he observed that the Government servant is not to be penalised and cannot be deprived of the safeguards provided by rule 3.14 because of the fact that the competent authority had not taken the necessary steps.As the Governor has deconfirmed the appellant from the post of Block Development and Panchayat officer, the suspended lien of the appellant on the post o f Agricultural Inspector would stand revived with effect from February 26, 1969. The promotion of the appellant in the parent Agricultural Department from the post of Agricultural Inspector to that of District Agricultural officer by the impugned order cannot in the circumstances be held to suffer from any legal infirmity.
|
Chowdarapu Raghunandan Vs. State Of Tamil Nadu | situation law Courts should be able to protect the individual from the administrative ipse dixit. The draconian concept of law has had its departure quite some time back and rule of law is the order of the day. It is this rule of law which should prompt the law Courts to act in a manner fair and reasonable having due regard to the nature of the offences and vis-a-vis the liberty of the citizens." The Court further observed thus:- "Preventive detention admitted is an "invasion of personal liberty" and it is a duty cast on the law Courts to satisfy itself in regard to the circumstances under which such a preventive detention has been ordered - in the event, however, the same does not conform to the requirements of the concept of justice as is available in the justice delivery system of the country, the law Courts would not shirk of its responsibility to provide relief to the person concerned. The guardian-angel of the Constitution stands poised with a responsibility to zealously act as a watchdog so that injustice does not occur: Let us not be understood to mean however that there ought to be any over zealous since the same may lend assistance to a situation which is otherwise not compatible with social good and benefit". 12. In the present case, it has been pointed out that the petitioner specifically made representation on 24.4.2001 to the Commissioner of Customs that the baggages without tags were not belonging to him. Same thing was contended in the bail applications which were rejected. It was submitted that other passenger travelling with the petitioner who arrived in the same flight and whose baggages were mixed up with that of the petitioner, was served with the summons by the authorities but thereafter nothing is known about him. In representation to the Commissioner, it was pointed out that he was Managing Director of Padmaja Infotech limited, a public limited company, having office at Hyderabad, Andhra Pradesh and that he had gone to Singapore regarding his companys business. He only purchased some toys and clothes for his children. As he was not having any dutiable item, he decided to go by green channel. To the officer who checked him, he informed that baggages, were not belonging to him but the officer told him that he was pushing the trolley and, therefore, he without listening him opened the baggages without tags. It was also pointed out that the officer arrested him for no fault and locked him with unclaimed baggages without tags under some mistake. Hence, it is submitted that the State Government without applying its mind to the aforesaid facts and alleged solitary incident erroneously arrived at the conclusion that there was likelihood of petitioner indulging in such prejudicial activities again while on bail, even though the bail application of the petitioner was rejected. 13. It is true that in appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activity but for that purpose antecedents and nature of the activities carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling ad that with a view to prevent, it was necessary to detain him. It is also settled law that an order of preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. If there is non-application of mind by the authority on this aspect, then the Court is required and is bound to protect the citizens personal liberty which is guaranteed under the Constitution. Subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. The question, therefore, would be from the past conduct of the petitioner as set out in the grounds of detention or other circumstances, whether reasonable inference could be drawn that he is likely to repeat such acts in the future. In the present case, past conduct of the petitioner is that he is Engineering graduate and at the relevant time he was managing director of a public limited company. There is no other allegation that he was involved in any other anti-social activities. Only allegation is that he visited Singapore twice as a tourist. Admittedly, the petitioner has filed bail application in a criminal prosecution for the alleged offence narrating the fact that his so-called statement was not voluntary and was recorded under coercion. The baggages were not belonging to him and there were no tags on the same so as to connect him with the said baggages and the crime. At the time of hearing of this matter also, it is admitted that the baggages were without any tags. It is also an admitted fact that there is nothing on record to hold that the petitioner was involved in any smuggling activity. However, the learned Additional Solicitor General submitted that in the statement recorded by the Customs Department petitioner had admitted that previously he had visited Singapore twice as a tourist, and, therefore, it can be inferred that the petitioner might have indulged and was likely to indulge in such activities. This submission is far fetched and without any foundation. From the fact that a person had visited Singapore twice earlier as a tourist, inference cannot be drawn that he was involved in smuggling activities or is likely to indulge in such activities in future. Hence, from the facts stated above it is totally unreasonably to arrive at a prognosis that the petitioner is likely to indulge in any such prejudicial activities. 14. | 1[ds]In representation to the Commissioner, it was pointed out that he was Managing Director of Padmaja Infotech limited, a public limited company, having office at Hyderabad, Andhra Pradesh and that he had gone to Singapore regarding his companys business. He only purchased some toys and clothes for his children. As he was not having any dutiable item, he decided to go by green channel. To the officer who checked him, he informed that baggages, were not belonging to him but the officer told him that he was pushing the trolley and, therefore, he without listening him opened the baggages without tags. It was also pointed out that the officer arrested him for no fault and locked him with unclaimed baggages without tags under some mistake. Hence, it is submitted that the State Government without applying its mind to the aforesaid facts and alleged solitary incident erroneously arrived at the conclusion that there was likelihood of petitioner indulging in such prejudicial activities again while on bail, even though the bail application of the petitioner wasconduct of the petitioner is that he is Engineering graduate and at the relevant time he was managing director of a public limited company. There is no other allegation that he was involved in any other anti-social activities. Only allegation is that he visited Singapore twice as a tourist. Admittedly, the petitioner has filed bail application in a criminal prosecution for the alleged offence narrating the fact that his so-called statement was not voluntary and was recorded under coercion. The baggages were not belonging to him and there were no tags on the same so as to connect him with the said baggages and the crime. At the time of hearing of this matter also, it is admitted that the baggages were without any tags. It is also an admitted fact that there is nothing on record to hold that the petitioner was involved in any smuggling activity. However, the learned Additional Solicitor General submitted that in the statement recorded by the Customs Department petitioner had admitted that previously he had visited Singapore twice as a tourist, and, therefore, it can be inferred that the petitioner might have indulged and was likely to indulge in such activities. This submission is far fetched and without any foundation. From the fact that a person had visited Singapore twice earlier as a tourist, inference cannot be drawn that he was involved in smuggling activities or is likely to indulge in such activities in future. Hence, from the facts stated above it is totally unreasonably to arrive at a prognosis that the petitioner is likely to indulge in any such prejudicialno doubt Courts exercising powers of judicial review do not consider the challenge to an order of detention, as if on an appeal re appreciating the materials, yet since an order of detention in prison involves the fundamental rights of citizen, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the respondents as to the decision arrived and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. So far as the facts of the present case are concerned, the plea on behalf of the petitioner is not that someone else also is concerned with the offending act but that he has nothing to do with it and that the baggage containing the contraband really belonged to such other person. Such plea cannot be also brushed aside in this case as one merely invented in the air but seem to have necessary basis from the fact that baggage ticket Nos. 0021777 and 0021771 were registered in the name of one Babu and that concedingly action and investigation in this regard is still pending and has not concluded so far. If the baggage really belonged to another person as was stated to have been registered, it necessarily follows that the petitioner cannot be the owner of the very same baggage. The seriously doubtful position about the elementary and basic fact regarding the ownership of the baggage and the admitted inconclusive stage of the investigation in this regard could not legitimately help the authorities to pass any other of detention against the petitioner on the perfunctory and inchoate materials relied upon. Apart from the absence of any positive or concrete materials to connect the baggage in question with the petitioner, the nature of stand disclosed in the counter affidavit filed on behalf of the 1st respondent on this aspect does not really help the Authority to prove that the said material and such vitally relevant aspect was either adverted to or really considered before passing the order of detention. | 1 | 2,702 | 856 | ### 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:
situation law Courts should be able to protect the individual from the administrative ipse dixit. The draconian concept of law has had its departure quite some time back and rule of law is the order of the day. It is this rule of law which should prompt the law Courts to act in a manner fair and reasonable having due regard to the nature of the offences and vis-a-vis the liberty of the citizens." The Court further observed thus:- "Preventive detention admitted is an "invasion of personal liberty" and it is a duty cast on the law Courts to satisfy itself in regard to the circumstances under which such a preventive detention has been ordered - in the event, however, the same does not conform to the requirements of the concept of justice as is available in the justice delivery system of the country, the law Courts would not shirk of its responsibility to provide relief to the person concerned. The guardian-angel of the Constitution stands poised with a responsibility to zealously act as a watchdog so that injustice does not occur: Let us not be understood to mean however that there ought to be any over zealous since the same may lend assistance to a situation which is otherwise not compatible with social good and benefit". 12. In the present case, it has been pointed out that the petitioner specifically made representation on 24.4.2001 to the Commissioner of Customs that the baggages without tags were not belonging to him. Same thing was contended in the bail applications which were rejected. It was submitted that other passenger travelling with the petitioner who arrived in the same flight and whose baggages were mixed up with that of the petitioner, was served with the summons by the authorities but thereafter nothing is known about him. In representation to the Commissioner, it was pointed out that he was Managing Director of Padmaja Infotech limited, a public limited company, having office at Hyderabad, Andhra Pradesh and that he had gone to Singapore regarding his companys business. He only purchased some toys and clothes for his children. As he was not having any dutiable item, he decided to go by green channel. To the officer who checked him, he informed that baggages, were not belonging to him but the officer told him that he was pushing the trolley and, therefore, he without listening him opened the baggages without tags. It was also pointed out that the officer arrested him for no fault and locked him with unclaimed baggages without tags under some mistake. Hence, it is submitted that the State Government without applying its mind to the aforesaid facts and alleged solitary incident erroneously arrived at the conclusion that there was likelihood of petitioner indulging in such prejudicial activities again while on bail, even though the bail application of the petitioner was rejected. 13. It is true that in appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activity but for that purpose antecedents and nature of the activities carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling ad that with a view to prevent, it was necessary to detain him. It is also settled law that an order of preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. If there is non-application of mind by the authority on this aspect, then the Court is required and is bound to protect the citizens personal liberty which is guaranteed under the Constitution. Subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. The question, therefore, would be from the past conduct of the petitioner as set out in the grounds of detention or other circumstances, whether reasonable inference could be drawn that he is likely to repeat such acts in the future. In the present case, past conduct of the petitioner is that he is Engineering graduate and at the relevant time he was managing director of a public limited company. There is no other allegation that he was involved in any other anti-social activities. Only allegation is that he visited Singapore twice as a tourist. Admittedly, the petitioner has filed bail application in a criminal prosecution for the alleged offence narrating the fact that his so-called statement was not voluntary and was recorded under coercion. The baggages were not belonging to him and there were no tags on the same so as to connect him with the said baggages and the crime. At the time of hearing of this matter also, it is admitted that the baggages were without any tags. It is also an admitted fact that there is nothing on record to hold that the petitioner was involved in any smuggling activity. However, the learned Additional Solicitor General submitted that in the statement recorded by the Customs Department petitioner had admitted that previously he had visited Singapore twice as a tourist, and, therefore, it can be inferred that the petitioner might have indulged and was likely to indulge in such activities. This submission is far fetched and without any foundation. From the fact that a person had visited Singapore twice earlier as a tourist, inference cannot be drawn that he was involved in smuggling activities or is likely to indulge in such activities in future. Hence, from the facts stated above it is totally unreasonably to arrive at a prognosis that the petitioner is likely to indulge in any such prejudicial activities. 14.
### Response:
1
### Explanation:
In representation to the Commissioner, it was pointed out that he was Managing Director of Padmaja Infotech limited, a public limited company, having office at Hyderabad, Andhra Pradesh and that he had gone to Singapore regarding his companys business. He only purchased some toys and clothes for his children. As he was not having any dutiable item, he decided to go by green channel. To the officer who checked him, he informed that baggages, were not belonging to him but the officer told him that he was pushing the trolley and, therefore, he without listening him opened the baggages without tags. It was also pointed out that the officer arrested him for no fault and locked him with unclaimed baggages without tags under some mistake. Hence, it is submitted that the State Government without applying its mind to the aforesaid facts and alleged solitary incident erroneously arrived at the conclusion that there was likelihood of petitioner indulging in such prejudicial activities again while on bail, even though the bail application of the petitioner wasconduct of the petitioner is that he is Engineering graduate and at the relevant time he was managing director of a public limited company. There is no other allegation that he was involved in any other anti-social activities. Only allegation is that he visited Singapore twice as a tourist. Admittedly, the petitioner has filed bail application in a criminal prosecution for the alleged offence narrating the fact that his so-called statement was not voluntary and was recorded under coercion. The baggages were not belonging to him and there were no tags on the same so as to connect him with the said baggages and the crime. At the time of hearing of this matter also, it is admitted that the baggages were without any tags. It is also an admitted fact that there is nothing on record to hold that the petitioner was involved in any smuggling activity. However, the learned Additional Solicitor General submitted that in the statement recorded by the Customs Department petitioner had admitted that previously he had visited Singapore twice as a tourist, and, therefore, it can be inferred that the petitioner might have indulged and was likely to indulge in such activities. This submission is far fetched and without any foundation. From the fact that a person had visited Singapore twice earlier as a tourist, inference cannot be drawn that he was involved in smuggling activities or is likely to indulge in such activities in future. Hence, from the facts stated above it is totally unreasonably to arrive at a prognosis that the petitioner is likely to indulge in any such prejudicialno doubt Courts exercising powers of judicial review do not consider the challenge to an order of detention, as if on an appeal re appreciating the materials, yet since an order of detention in prison involves the fundamental rights of citizen, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the respondents as to the decision arrived and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. So far as the facts of the present case are concerned, the plea on behalf of the petitioner is not that someone else also is concerned with the offending act but that he has nothing to do with it and that the baggage containing the contraband really belonged to such other person. Such plea cannot be also brushed aside in this case as one merely invented in the air but seem to have necessary basis from the fact that baggage ticket Nos. 0021777 and 0021771 were registered in the name of one Babu and that concedingly action and investigation in this regard is still pending and has not concluded so far. If the baggage really belonged to another person as was stated to have been registered, it necessarily follows that the petitioner cannot be the owner of the very same baggage. The seriously doubtful position about the elementary and basic fact regarding the ownership of the baggage and the admitted inconclusive stage of the investigation in this regard could not legitimately help the authorities to pass any other of detention against the petitioner on the perfunctory and inchoate materials relied upon. Apart from the absence of any positive or concrete materials to connect the baggage in question with the petitioner, the nature of stand disclosed in the counter affidavit filed on behalf of the 1st respondent on this aspect does not really help the Authority to prove that the said material and such vitally relevant aspect was either adverted to or really considered before passing the order of detention.
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SARVEPALLI RAMAIAH (D) TR.LRS Vs. DISTRICT COLLECTOR CHITTOOR DIST. | Section 2-A of the Inams Abolition Act. These lands are not available for grant of ryotwari patta to any individual under the Act. Since the village is an Inam village, the then Inams Deputy Tahsildar, Collector’s Office, Chittoor has declared entire land measuring acres 113.67 ½ as “Tank Poramboke” and brought under Section 2-A of Inams Abolition Act and the same was published in the District Gazette No.9 dated 03.09.1984 at Page No.20. The Inams Deputy Tahsildar, Chittoor bonafidely ignoring the above fact, has by mistake, mentioned the Survey No.234 acres 54-00 as “Inam Dry” at Page No.19 of the District Gazette, Chittoor No.9 dated 03.09.1984 which is stated to be invalid.9. As noticed earlier, the appellants claimed on the basis of the orders dated 29.09.1980 and 14.12.1980 for granting issuance of ryotwari patta. When Mandal Revenue Officer by proceeding Roc.C.213/89 dated 20.06.1990 has sought for clarification, the District Collector issued a paper notification on 14.03.1991 in Andhra Jyothi daily Telugu Newspaper vide Roc B9.00701/1990 dated 12.03.1991 stating that Sri Shaik Kasumaiah who worked as Inams Deputy Tahsildar Chandragiri, Chittoor District issued ryotwari pattas and that the same are not valid and the sale deeds are also not valid. The then District Collector, Chittoor also issued another paper notification vide Roc.E2/.701/1990 dated 28.07.1994 published in Andhra Jyothi daily Telugu Newspaper dated 23.08.1994 stating that the then Inams Deputy Tahsildar Sri Shaik Kasumaiah has issued fake ryotwari pattas and that they are bogus and invalid. The purported pattas IE No.303/77 dated 29.09.1980 relied upon by the appellants in the present case, was also shown as Serial No.1 with the name of appellant Sarvepalle Ramaiah in the said paper publication dated 23.08.1984.10. It is also to be pointed out that the very document upon which the appellant is claiming right over the land is a Takeed dated 31.12.1940 said to have been issued by Sri Swamy Hathiramji Math, Tirupati. According to the respondents, Sri Swamy Hathiramji Math, Tirupati has no right over the land for grant of Takeed or Saswatha patta for the land. In many cases, it was found that such Takeed or Saswatha patta was never issued by Sri Swamy Hathiramji Math and they were created or fabricated and the Saswatha patta relied upon by the appellant is not a valid and reliable document.11. It is in this context, upon consideration of the documents and the report of the Inams Deputy Tahsildar, the District Collector held that the appellant is claiming the land in Survey No.234 on the basis of fabricated documents which are not found in the official records of the then Inams Deputy Tahsildar, Chandragiri. The District Collector rightly held that the entire land in Survey No.234 of Tiruchanur village that is 113.67½ was classified as “Peddacheruvu Tank” under Section 2-A of the Inams Abolition Act published in the official District Gazette No.9 dated 03.09.1984. The District Collector has also pointed out that a recent order was passed by the Inams Deputy Tahsildar in IDT Ref. No.1/83 dated 11.05.1993 declaring the total extent in Survey No.234 as Tank in pursuance of the order of the High Court dated 13.04.1992 in WA Nos.941/88 and 1070/88 which has thus attained finality so far as classification of land. As rightly held by the District Collector, when the entire extent of land in Survey No.234 was classified as Tank, no extent is available for grant of ryotwari patta under the provisions of Inams Abolition Act and the question of implementation of ryotwari patta does not arise. The learned Single Judge and the Division Bench rightly held that the land is classified as “Peddacheruvu Tank” vested with the government and there is no question of issuance of ryotwari patta in view of the bar contained in Section 2-A of the Inams Abolition Act.12. On behalf of the appellants, much reliance was placed upon the Gazette Notification dated 03.09.1984 at Page No.19 where 54-00 acres in Survey No.234 has been classified as “Dry” in Form-II under sub-section (3) of the Inams Abolition Act. As per the provisions laid down in the Act, Inams Deputy Tahsildar has to issue notice in Form-I and decision in Form-II for the inam lands alone deciding whether “the lands are held by an institution” or “not held by institution”. According to the respondent State, the Inams Deputy Tahsildar did not follow the procedure as laid down in Andhra Pradesh Inams (Abolition & Conversion into Ryotwari) Act, 1956 and without following the procedure, straightway published acre 54-00 in Survey No.234 as “Inam Dry” at Page No.19 of the District Gazette and that the same is unlawful and invalid. According to the respondent-State, based on the invalid notifications as ‘Inam Dry’, nobody can claim right over the communal poramboke government lands. All the lands are vested with the government free from encumbrances. When the entire extent of 113.67 ½ in Survey No.234 is classified as “Peddacheruvu Poramboke”, according to the respondent, the notification of acres 54-00 as “Inam Dry” at Page No.19 of the Gazette was unlawful and invalid. Mere publication in the District Gazette, Chittoor cannot give any right to anybody over communal lands. Based on such invalid notification as “Inam Dry”, nobody can claim right over the Communal Poramboke lands which are vested with the government.13. The District Collector has referred to the Gazette Notification dated 03.09.1984 as per which the entire extent of 113.67 ½ in Survey No.234 is classified as “Peddacheruvu Tank” and held that no extent of land was available for issuance of ryotwari patta. As pointed out by the High Court, even though, in his order the District Collector has referred to the Gazette Notification dated 03.09.1984, the appellants have not challenged the said Gazette Notification. The Division Bench in its order dated 22.02.2006 elaborately has also referred to the conduct of the appellants as to how they have withheld the crucial part of the Gazette Notification viz. Page No.20 which contains the classification of the land as Peddacheruvu - Tank Poramboke in Survey No.234. | 0[ds]8. Tiruchanur village in Tirupati Rural Mandal, Chittoor District is a minor Inam village and therefore, it attracts the provisions of the Andhra Pradesh Inams (Abolition & Conversion into Ryotwari) Act, 1956 (Inams Abolition Act). The entire land measuring acres 113.67 ½ comprised in Survey No.234 of Tiruchanur village, Tirupati Rural Mandal is classified asnk Poramboke). All the communal government poramboke lands falls under Section 2-A of the Inams Abolition Act. These lands are not available for grant of ryotwari patta to any individual under the Act. Since the village is an Inam village, the then Inams Deputy Tahsildar,Office, Chittoor has declared entire land measuring acres 113.67 ½ asnd brought under Section 2-A of Inams Abolition Act and the same was published in the District Gazette No.9 dated 03.09.1984 at Page No.20. The Inams Deputy Tahsildar, Chittoor bonafidely ignoring the above fact, has by mistake, mentioned the Survey No.234 acres 54-00 asat Page No.19 of the District Gazette, Chittoor No.9 dated 03.09.1984 which is stated to be invalid.9. As noticed earlier, the appellants claimed on the basis of the orders dated 29.09.1980 and 14.12.1980 for granting issuance of ryotwari patta. When Mandal Revenue Officer by proceeding Roc.C.213/89 dated 20.06.1990 has sought for clarification, the District Collector issued a paper notification on 14.03.1991 in Andhra Jyothi daily Telugu Newspaper vide Roc B9.00701/1990 dated 12.03.1991 stating that Sri Shaik Kasumaiah who worked as Inams Deputy Tahsildar Chandragiri, Chittoor District issued ryotwari pattas and that the same are not valid and the sale deeds are also not valid. The then District Collector, Chittoor also issued another paper notification vide Roc.E2/.701/1990 dated 28.07.1994 published in Andhra Jyothi daily Telugu Newspaper dated 23.08.1994 stating that the then Inams Deputy Tahsildar Sri Shaik Kasumaiah has issued fake ryotwari pattas and that they are bogus and invalid. The purported pattas IE No.303/77 dated 29.09.1980 relied upon by the appellants in the present case, was also shown as Serial No.1 with the name of appellant Sarvepalle Ramaiah in the said paper publication dated 23.08.1984.10. It is also to be pointed out that the very document upon which the appellant is claiming right over the land is a Takeed dated 31.12.1940 said to have been issued by Sri Swamy Hathiramji Math, Tirupati. According to the respondents, Sri Swamy Hathiramji Math, Tirupati has no right over the land for grant of Takeed or Saswatha patta for the land. In many cases, it was found that such Takeed or Saswatha patta was never issued by Sri Swamy Hathiramji Math and they were created or fabricated and the Saswatha patta relied upon by the appellant is not a valid and reliable document.11. It is in this context, upon consideration of the documents and the report of the Inams Deputy Tahsildar, the District Collector held that the appellant is claiming the land in Survey No.234 on the basis of fabricated documents which are not found in the official records of the then Inams Deputy Tahsildar, Chandragiri. The District Collector rightly held that the entire land in Survey No.234 of Tiruchanur village that is 113.67½ was classified aser Section 2-A of the Inams Abolition Act published in the official District Gazette No.9 dated 03.09.1984. The District Collector has also pointed out that a recent order was passed by the Inams Deputy Tahsildar in IDT Ref. No.1/83 dated 11.05.1993 declaring the total extent in Survey No.234 as Tank in pursuance of the order of the High Court dated 13.04.1992 in WA Nos.941/88 and 1070/88 which has thus attained finality so far as classification of land. As rightly held by the District Collector, when the entire extent of land in Survey No.234 was classified as Tank, no extent is available for grant of ryotwari patta under the provisions of Inams Abolition Act and the question of implementation of ryotwari patta does not arise. The learned Single Judge and the Division Bench rightly held that the land is classified ased with the government and there is no question of issuance of ryotwari patta in view of the bar contained in Section 2-A of the Inams Abolition Act.12. On behalf of the appellants, much reliance was placed upon the Gazette Notification dated 03.09.1984 at Page No.19 where 54-00 acres in Survey No.234 has been classified asin Form-II under sub-section (3) of the Inams Abolition Act. As per the provisions laid down in the Act, Inams Deputy Tahsildar has to issue notice in Form-I and decision in Form-II for the inam lands alone deciding whetherlands are held by anot held byAccording to the respondent State, the Inams Deputy Tahsildar did not follow the procedure as laid down in Andhra Pradesh Inams (Abolition & Conversion into Ryotwari) Act, 1956 and without following the procedure, straightway published acre 54-00 in Survey No.234 asat Page No.19 of the District Gazette and that the same is unlawful and invalid. According to the respondent-State, based on the invalid notifications as ‘Inamnobody can claim right over the communal poramboke government lands. All the lands are vested with the government free from encumbrances. When the entire extent of 113.67 ½ in Survey No.234 is classified as, according to the respondent, the notification of acres 54-00 asat Page No.19 of the Gazette was unlawful and invalid. Mere publication in the District Gazette, Chittoor cannot give any right to anybody over communal lands. Based on such invalid notification as, nobody can claim right over the Communal Poramboke lands which are vested with the government.13. The District Collector has referred to the Gazette Notification dated 03.09.1984 as per which the entire extent of 113.67 ½ in Survey No.234 is classified asnd held that no extent of land was available for issuance of ryotwari patta. As pointed out by the High Court, even though, in his order the District Collector has referred to the Gazette Notification dated 03.09.1984, the appellants have not challenged the said Gazette Notification. The Division Bench in its order dated 22.02.2006 elaborately has also referred to the conduct of the appellants as to how they have withheld the crucial part of the Gazette Notification viz. Page No.20 which contains the classification of the land as Peddacheruvu - Tank Poramboke in Survey No.234. | 0 | 2,169 | 1,111 | ### Instruction:
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Section 2-A of the Inams Abolition Act. These lands are not available for grant of ryotwari patta to any individual under the Act. Since the village is an Inam village, the then Inams Deputy Tahsildar, Collector’s Office, Chittoor has declared entire land measuring acres 113.67 ½ as “Tank Poramboke” and brought under Section 2-A of Inams Abolition Act and the same was published in the District Gazette No.9 dated 03.09.1984 at Page No.20. The Inams Deputy Tahsildar, Chittoor bonafidely ignoring the above fact, has by mistake, mentioned the Survey No.234 acres 54-00 as “Inam Dry” at Page No.19 of the District Gazette, Chittoor No.9 dated 03.09.1984 which is stated to be invalid.9. As noticed earlier, the appellants claimed on the basis of the orders dated 29.09.1980 and 14.12.1980 for granting issuance of ryotwari patta. When Mandal Revenue Officer by proceeding Roc.C.213/89 dated 20.06.1990 has sought for clarification, the District Collector issued a paper notification on 14.03.1991 in Andhra Jyothi daily Telugu Newspaper vide Roc B9.00701/1990 dated 12.03.1991 stating that Sri Shaik Kasumaiah who worked as Inams Deputy Tahsildar Chandragiri, Chittoor District issued ryotwari pattas and that the same are not valid and the sale deeds are also not valid. The then District Collector, Chittoor also issued another paper notification vide Roc.E2/.701/1990 dated 28.07.1994 published in Andhra Jyothi daily Telugu Newspaper dated 23.08.1994 stating that the then Inams Deputy Tahsildar Sri Shaik Kasumaiah has issued fake ryotwari pattas and that they are bogus and invalid. The purported pattas IE No.303/77 dated 29.09.1980 relied upon by the appellants in the present case, was also shown as Serial No.1 with the name of appellant Sarvepalle Ramaiah in the said paper publication dated 23.08.1984.10. It is also to be pointed out that the very document upon which the appellant is claiming right over the land is a Takeed dated 31.12.1940 said to have been issued by Sri Swamy Hathiramji Math, Tirupati. According to the respondents, Sri Swamy Hathiramji Math, Tirupati has no right over the land for grant of Takeed or Saswatha patta for the land. In many cases, it was found that such Takeed or Saswatha patta was never issued by Sri Swamy Hathiramji Math and they were created or fabricated and the Saswatha patta relied upon by the appellant is not a valid and reliable document.11. It is in this context, upon consideration of the documents and the report of the Inams Deputy Tahsildar, the District Collector held that the appellant is claiming the land in Survey No.234 on the basis of fabricated documents which are not found in the official records of the then Inams Deputy Tahsildar, Chandragiri. The District Collector rightly held that the entire land in Survey No.234 of Tiruchanur village that is 113.67½ was classified as “Peddacheruvu Tank” under Section 2-A of the Inams Abolition Act published in the official District Gazette No.9 dated 03.09.1984. The District Collector has also pointed out that a recent order was passed by the Inams Deputy Tahsildar in IDT Ref. No.1/83 dated 11.05.1993 declaring the total extent in Survey No.234 as Tank in pursuance of the order of the High Court dated 13.04.1992 in WA Nos.941/88 and 1070/88 which has thus attained finality so far as classification of land. As rightly held by the District Collector, when the entire extent of land in Survey No.234 was classified as Tank, no extent is available for grant of ryotwari patta under the provisions of Inams Abolition Act and the question of implementation of ryotwari patta does not arise. The learned Single Judge and the Division Bench rightly held that the land is classified as “Peddacheruvu Tank” vested with the government and there is no question of issuance of ryotwari patta in view of the bar contained in Section 2-A of the Inams Abolition Act.12. On behalf of the appellants, much reliance was placed upon the Gazette Notification dated 03.09.1984 at Page No.19 where 54-00 acres in Survey No.234 has been classified as “Dry” in Form-II under sub-section (3) of the Inams Abolition Act. As per the provisions laid down in the Act, Inams Deputy Tahsildar has to issue notice in Form-I and decision in Form-II for the inam lands alone deciding whether “the lands are held by an institution” or “not held by institution”. According to the respondent State, the Inams Deputy Tahsildar did not follow the procedure as laid down in Andhra Pradesh Inams (Abolition & Conversion into Ryotwari) Act, 1956 and without following the procedure, straightway published acre 54-00 in Survey No.234 as “Inam Dry” at Page No.19 of the District Gazette and that the same is unlawful and invalid. According to the respondent-State, based on the invalid notifications as ‘Inam Dry’, nobody can claim right over the communal poramboke government lands. All the lands are vested with the government free from encumbrances. When the entire extent of 113.67 ½ in Survey No.234 is classified as “Peddacheruvu Poramboke”, according to the respondent, the notification of acres 54-00 as “Inam Dry” at Page No.19 of the Gazette was unlawful and invalid. Mere publication in the District Gazette, Chittoor cannot give any right to anybody over communal lands. Based on such invalid notification as “Inam Dry”, nobody can claim right over the Communal Poramboke lands which are vested with the government.13. The District Collector has referred to the Gazette Notification dated 03.09.1984 as per which the entire extent of 113.67 ½ in Survey No.234 is classified as “Peddacheruvu Tank” and held that no extent of land was available for issuance of ryotwari patta. As pointed out by the High Court, even though, in his order the District Collector has referred to the Gazette Notification dated 03.09.1984, the appellants have not challenged the said Gazette Notification. The Division Bench in its order dated 22.02.2006 elaborately has also referred to the conduct of the appellants as to how they have withheld the crucial part of the Gazette Notification viz. Page No.20 which contains the classification of the land as Peddacheruvu - Tank Poramboke in Survey No.234.
### Response:
0
### Explanation:
& Conversion into Ryotwari) Act, 1956 (Inams Abolition Act). The entire land measuring acres 113.67 ½ comprised in Survey No.234 of Tiruchanur village, Tirupati Rural Mandal is classified asnk Poramboke). All the communal government poramboke lands falls under Section 2-A of the Inams Abolition Act. These lands are not available for grant of ryotwari patta to any individual under the Act. Since the village is an Inam village, the then Inams Deputy Tahsildar,Office, Chittoor has declared entire land measuring acres 113.67 ½ asnd brought under Section 2-A of Inams Abolition Act and the same was published in the District Gazette No.9 dated 03.09.1984 at Page No.20. The Inams Deputy Tahsildar, Chittoor bonafidely ignoring the above fact, has by mistake, mentioned the Survey No.234 acres 54-00 asat Page No.19 of the District Gazette, Chittoor No.9 dated 03.09.1984 which is stated to be invalid.9. As noticed earlier, the appellants claimed on the basis of the orders dated 29.09.1980 and 14.12.1980 for granting issuance of ryotwari patta. When Mandal Revenue Officer by proceeding Roc.C.213/89 dated 20.06.1990 has sought for clarification, the District Collector issued a paper notification on 14.03.1991 in Andhra Jyothi daily Telugu Newspaper vide Roc B9.00701/1990 dated 12.03.1991 stating that Sri Shaik Kasumaiah who worked as Inams Deputy Tahsildar Chandragiri, Chittoor District issued ryotwari pattas and that the same are not valid and the sale deeds are also not valid. The then District Collector, Chittoor also issued another paper notification vide Roc.E2/.701/1990 dated 28.07.1994 published in Andhra Jyothi daily Telugu Newspaper dated 23.08.1994 stating that the then Inams Deputy Tahsildar Sri Shaik Kasumaiah has issued fake ryotwari pattas and that they are bogus and invalid. The purported pattas IE No.303/77 dated 29.09.1980 relied upon by the appellants in the present case, was also shown as Serial No.1 with the name of appellant Sarvepalle Ramaiah in the said paper publication dated 23.08.1984.10. It is also to be pointed out that the very document upon which the appellant is claiming right over the land is a Takeed dated 31.12.1940 said to have been issued by Sri Swamy Hathiramji Math, Tirupati. According to the respondents, Sri Swamy Hathiramji Math, Tirupati has no right over the land for grant of Takeed or Saswatha patta for the land. In many cases, it was found that such Takeed or Saswatha patta was never issued by Sri Swamy Hathiramji Math and they were created or fabricated and the Saswatha patta relied upon by the appellant is not a valid and reliable document.11. It is in this context, upon consideration of the documents and the report of the Inams Deputy Tahsildar, the District Collector held that the appellant is claiming the land in Survey No.234 on the basis of fabricated documents which are not found in the official records of the then Inams Deputy Tahsildar, Chandragiri. The District Collector rightly held that the entire land in Survey No.234 of Tiruchanur village that is 113.67½ was classified aser Section 2-A of the Inams Abolition Act published in the official District Gazette No.9 dated 03.09.1984. The District Collector has also pointed out that a recent order was passed by the Inams Deputy Tahsildar in IDT Ref. No.1/83 dated 11.05.1993 declaring the total extent in Survey No.234 as Tank in pursuance of the order of the High Court dated 13.04.1992 in WA Nos.941/88 and 1070/88 which has thus attained finality so far as classification of land. As rightly held by the District Collector, when the entire extent of land in Survey No.234 was classified as Tank, no extent is available for grant of ryotwari patta under the provisions of Inams Abolition Act and the question of implementation of ryotwari patta does not arise. The learned Single Judge and the Division Bench rightly held that the land is classified ased with the government and there is no question of issuance of ryotwari patta in view of the bar contained in Section 2-A of the Inams Abolition Act.12. On behalf of the appellants, much reliance was placed upon the Gazette Notification dated 03.09.1984 at Page No.19 where 54-00 acres in Survey No.234 has been classified asin Form-II under sub-section (3) of the Inams Abolition Act. As per the provisions laid down in the Act, Inams Deputy Tahsildar has to issue notice in Form-I and decision in Form-II for the inam lands alone deciding whetherlands are held by anot held byAccording to the respondent State, the Inams Deputy Tahsildar did not follow the procedure as laid down in Andhra Pradesh Inams (Abolition & Conversion into Ryotwari) Act, 1956 and without following the procedure, straightway published acre 54-00 in Survey No.234 asat Page No.19 of the District Gazette and that the same is unlawful and invalid. According to the respondent-State, based on the invalid notifications as ‘Inamnobody can claim right over the communal poramboke government lands. All the lands are vested with the government free from encumbrances. When the entire extent of 113.67 ½ in Survey No.234 is classified as, according to the respondent, the notification of acres 54-00 asat Page No.19 of the Gazette was unlawful and invalid. Mere publication in the District Gazette, Chittoor cannot give any right to anybody over communal lands. Based on such invalid notification as, nobody can claim right over the Communal Poramboke lands which are vested with the government.13. The District Collector has referred to the Gazette Notification dated 03.09.1984 as per which the entire extent of 113.67 ½ in Survey No.234 is classified asnd held that no extent of land was available for issuance of ryotwari patta. As pointed out by the High Court, even though, in his order the District Collector has referred to the Gazette Notification dated 03.09.1984, the appellants have not challenged the said Gazette Notification. The Division Bench in its order dated 22.02.2006 elaborately has also referred to the conduct of the appellants as to how they have withheld the crucial part of the Gazette Notification viz. Page No.20 which contains the classification of the land as Peddacheruvu - Tank Poramboke in Survey No.234.
|
F. N. Roy Vs. Collector Of Customs, Calcutta | effect of making the order of confiscation passed in this case invalid. All that the petitioner is concerned with is to show that the order of confiscation was bad. The present argument does not touch that point and therefore it is not necessary to consider it at all. Another similar argument was that S.167, item (8) of the Sea Customs Act itself offended Art.14 in that it left to the uncontrolled discretion of the Customs-authorities to decide the amount of the penalty to be imposed. The section makes it clear that the maximum penalty that might be imposed under it is Rs.1, 000. The discretion that the section gives must be exercised within the limit so fixed. This is not an uncontrolled or unreasonable discretion. Furthermore, the discretion is vested in high Customs officers and there are appeals from their order. The imposition of the fine is really a quasi-judicial act and the test of the quantum of it is in the gravity of the offence.The object of the Act is to prevent unauthorised importation of goods and the discretion has to be exercised with that object in view.10. Learned counsel then contended that the order of confiscation had been made mala fide. It was said that it had been passed ex parte. This is, not correct for the petitioner had been asked before the order was made whether he wanted a personal hearing and he had stated in reply that he did not and had ample confidence in the authorities. It is not therefore open to the petitioner to contend that he had no opportunity of being heard before the order against him was passed. He had been given an opportunity and had not availed himself of it. It was also stated that in deciding not to give the petitioner an option to pay a fine in lieu of confiscation the Customs-authority had gone into certain other transactions without giving any notice to the petitioner that this would be done. It was said that the petitioner was not given an opportunity of being heard in respect of these transactions. The notice which the Customs-authorities gave to the petitioner to show cause why the goods should not be confiscated also informed him necessarily that an order for confiscation might be made without an option to pay a fine in lieu of confiscation being given and therefore it was his fault if he did not appear at the hearing and showed cause why the order of confiscation should not be absolute but should give him an option to pay a fine. It was also said that he had been deprived of the option because of the differences that existed between him and the Public Relations Officer of the Customs Department in Calcutta. This point of view was sought to be supported by citing the cases of two other persons who had imported similar goods at or about the same time; and who had been given the option. The facts of these other cases were however substantially different. There was nothing to show in these that goods had been imported in deliberate violation of the order of the Government while in the case of the petitioner there are materials on which such a view could be formed. It appears that the petitioner as the Manager of a firm called Federal Clearing Agency had received a communication from the Customs-authorities on 30-7-1953, that Zip Chains were not covered by the notification of 16th March 1953, and within a fortnight of that communication he had placed the orders for identical goods which he now claims to be within the notification. It was not unreasonable for the Customs-authorities to think that the petitioner had deliberately imported the goods in breach of the order of the Government and without specific licence for that purpose, and on that ground to think it proper not to give him the option. This would be so even if it was assumed that in the dispute with the Public Relations Officer the petitioner was in the right.11. It was then stated that the petitioner had not been given personal hearing of the appeal that he preferred to the Central Board of Revenue and the application in revision to the Government. But there is no rule of natural justice that at every stage a person is entitled to a personal hearing. Furthermore, the appeal was out of time. The memorandum of appeal to the Central Board of Revenue was posted on 4th May 1954. The time to file the appeal, however, expired on 1st May 1954, so that even if the date of the posting is taken as the date of the appeal the petitioner was out of time. The petitioner states that he received the order of confiscation on 3rd February 1954. Even so, on 4th May 1954, he would not be within time. The memorandum of appeal however was received by the Central Board of Revenue on 6th May 1954. That must be taken to be the date when the appeal was filed, and that being so the appeal must be taken to have been filed clearly out of time. The petitioner stated that the Customs-Authorities wrongfully and maliciously procured his arrest on 1st May 1954 and he obtained his release on 2nd May 1954. It was suggested that this arrest was procured in order to prevent him from filing his appeal in time.12. This contention is entirely idle. Admittedly, the petitioner had time from 3rd February 1954, till 1st May 1954, to file his appeal but he did not take advantage of this long period. He waited till the end for filing the appeal. There is nothing to show that the arrest was wrongful or that at the date of the arrest the Customs-authorities had any knowledge that the petitioner had not filed his appeal. The contentions that the order complained of was mala fide or that the appeal had not been filed out of time are entirely untenable.13. | 0[ds]6. This argument is based on the contention that a portion of S.3 (2) of the Act of 1947 offends Art.14 and has therefore to be deleted. This contention is wrong. By its own force no part of S.3 (2) purports to give any discretion to the customs-authorities at all. There is nothing in it therefore to offend Art.The only effect of S.3 (2) is to apply the Sea Customs Act to certainis impossible to say that a statute which only makes another statute applicable to certain cases, offends Art.Such a statute has obviously nothing to do with Art.It is true that S.3 (2) of the Act of 1947 makes S.183 of the Sea Customs Act applicable with a modification. It was said that S.183 so modified offends Art.14.Assume that S.183 as modified infringes Art.What then?Clearly on this assumption S.183 as modified becomes ultra vires and illegal and it goes out of the statutethat does not affect the question before us at all. It does not make the order of confiscation without an option to pay a fine in lieu thereof bad.It has to be remembered that S.3 (2) of the Act of 1947 states that all goods to which any order under sub-s. (1) applies shall be deemed to be goods of which the import has been prohibited under S.19 of the Sea Customs Act. Admittedly sub-s. (1) of S.3 of the Act of 1947 applies to the goods with which this case isS.3 (2) of the Act of 1947 the import of these goods is to be deemed to have been prohibited under S.19 of the Sea Customs Act. It follows that action under S.167, item (8) of the Sea Customs Act can be taken in respect of these goods and they can be confiscated and the person concerned in the illegal import made liable to a penalty. Resort to S.183 of the Sea Customs Act is not necessary to justify the order of confiscation made in this case at all. Indeed S.183 does not authoriseassumes a confiscation authorised by other provisions of the Sea Customs Act and provides that on a confiscation being adjudged, an option to pay a fine in lieu of it shall be given. It cannot therefore be said, even on the assumption that learned counsel was right in his contention that S.183 as modified offends Art.14 that the order of confiscation is bad. As to whether the contention of learned counsel is right or not we decide nothing as it is not necessary to doreasons for this view we have stated earlier. The other is S.183 of the Sea Customs Act as modified by the Act ofAs so modified we have for the present purpose assumed that it offends Art.If it does it goes out as a whole. It is not really a statutory provision in two parts with regard to which it might have been possible to say that one part offends Art.14 while the other part doesthe facts of this case, it is an academic argument. Even if it was right the entire S.183 would have to be ignored but that would not have the effect of making the order of confiscation passed in this case invalid. All that the petitioner is concerned with is to show that the order of confiscation waspresent argument does not touch that point and therefore it is not necessary to consider it at all. Another similar argument was that S.167, item (8) of the Sea Customs Act itself offended Art.14 in that it left to the uncontrolled discretion of the Customs-authorities to decide the amount of the penalty to be imposed. The section makes it clear that the maximum penalty that might be imposed under it is Rs.1, 000. The discretion that the section gives must be exercised within the limit sois not an uncontrolled or unreasonable discretion. Furthermore, the discretion is vested in high Customs officers and there are appeals from their order. The imposition of the fine is really a quasi-judicial act and the test of the quantum of it is in the gravity of the offence.The object of the Act is to prevent unauthorised importation of goods and the discretion has to be exercised with that object inhad been given an opportunity and had not availed himself of it. It was also stated that in deciding not to give the petitioner an option to pay a fine in lieu of confiscation the Customs-authority had gone into certain other transactions without giving any notice to the petitioner that this would be done. It was said that the petitioner was not given an opportunity of being heard in respect of thesenotice which the Customs-authorities gave to the petitioner to show cause why the goods should not be confiscated also informed him necessarily that an order for confiscation might be made without an option to pay a fine in lieu of confiscation being given and therefore it was his fault if he did not appear at the hearing and showed cause why the order of confiscation should not be absolute but should give him an option to pay apoint of view was sought to be supported by citing the cases of two other persons who had imported similar goods at or about the same time; and who had been given the option. The facts of these other cases were however substantiallywas nothing to show in these that goods had been imported in deliberate violation of the order of the Government while in the case of the petitioner there are materials on which such a view could be formed. It appears that the petitioner as the Manager of a firm called Federal Clearing Agency had received a communication from the Customs-authorities on 30-7-1953, that Zip Chains were not covered by the notification of 16th March 1953, and within a fortnight of that communication he had placed the orders for identical goods which he now claims to be within thewas not unreasonable for the Customs-authorities to think that the petitioner had deliberately imported the goods in breach of the order of the Government and without specific licence for that purpose, and on that ground to think it proper not to give him the option. This would be so even if it was assumed that in the dispute with the Public Relations Officer the petitioner was in theis no rule of natural justice that at every stage a person is entitled to a personal hearing. Furthermore, the appeal was out ofthe petitioner had time from 3rd February 1954, till 1st May 1954, to file his appeal but he did not take advantage of this long period. He waited till the end for filing the appeal. There is nothing to show that the arrest was wrongful or that at the date of the arrest the Customs-authorities had any knowledge that the petitioner had not filed his appeal. The contentions that the order complained of was mala fide or that the appeal had not been filed out of time are entirely untenable. | 0 | 3,337 | 1,245 | ### Instruction:
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effect of making the order of confiscation passed in this case invalid. All that the petitioner is concerned with is to show that the order of confiscation was bad. The present argument does not touch that point and therefore it is not necessary to consider it at all. Another similar argument was that S.167, item (8) of the Sea Customs Act itself offended Art.14 in that it left to the uncontrolled discretion of the Customs-authorities to decide the amount of the penalty to be imposed. The section makes it clear that the maximum penalty that might be imposed under it is Rs.1, 000. The discretion that the section gives must be exercised within the limit so fixed. This is not an uncontrolled or unreasonable discretion. Furthermore, the discretion is vested in high Customs officers and there are appeals from their order. The imposition of the fine is really a quasi-judicial act and the test of the quantum of it is in the gravity of the offence.The object of the Act is to prevent unauthorised importation of goods and the discretion has to be exercised with that object in view.10. Learned counsel then contended that the order of confiscation had been made mala fide. It was said that it had been passed ex parte. This is, not correct for the petitioner had been asked before the order was made whether he wanted a personal hearing and he had stated in reply that he did not and had ample confidence in the authorities. It is not therefore open to the petitioner to contend that he had no opportunity of being heard before the order against him was passed. He had been given an opportunity and had not availed himself of it. It was also stated that in deciding not to give the petitioner an option to pay a fine in lieu of confiscation the Customs-authority had gone into certain other transactions without giving any notice to the petitioner that this would be done. It was said that the petitioner was not given an opportunity of being heard in respect of these transactions. The notice which the Customs-authorities gave to the petitioner to show cause why the goods should not be confiscated also informed him necessarily that an order for confiscation might be made without an option to pay a fine in lieu of confiscation being given and therefore it was his fault if he did not appear at the hearing and showed cause why the order of confiscation should not be absolute but should give him an option to pay a fine. It was also said that he had been deprived of the option because of the differences that existed between him and the Public Relations Officer of the Customs Department in Calcutta. This point of view was sought to be supported by citing the cases of two other persons who had imported similar goods at or about the same time; and who had been given the option. The facts of these other cases were however substantially different. There was nothing to show in these that goods had been imported in deliberate violation of the order of the Government while in the case of the petitioner there are materials on which such a view could be formed. It appears that the petitioner as the Manager of a firm called Federal Clearing Agency had received a communication from the Customs-authorities on 30-7-1953, that Zip Chains were not covered by the notification of 16th March 1953, and within a fortnight of that communication he had placed the orders for identical goods which he now claims to be within the notification. It was not unreasonable for the Customs-authorities to think that the petitioner had deliberately imported the goods in breach of the order of the Government and without specific licence for that purpose, and on that ground to think it proper not to give him the option. This would be so even if it was assumed that in the dispute with the Public Relations Officer the petitioner was in the right.11. It was then stated that the petitioner had not been given personal hearing of the appeal that he preferred to the Central Board of Revenue and the application in revision to the Government. But there is no rule of natural justice that at every stage a person is entitled to a personal hearing. Furthermore, the appeal was out of time. The memorandum of appeal to the Central Board of Revenue was posted on 4th May 1954. The time to file the appeal, however, expired on 1st May 1954, so that even if the date of the posting is taken as the date of the appeal the petitioner was out of time. The petitioner states that he received the order of confiscation on 3rd February 1954. Even so, on 4th May 1954, he would not be within time. The memorandum of appeal however was received by the Central Board of Revenue on 6th May 1954. That must be taken to be the date when the appeal was filed, and that being so the appeal must be taken to have been filed clearly out of time. The petitioner stated that the Customs-Authorities wrongfully and maliciously procured his arrest on 1st May 1954 and he obtained his release on 2nd May 1954. It was suggested that this arrest was procured in order to prevent him from filing his appeal in time.12. This contention is entirely idle. Admittedly, the petitioner had time from 3rd February 1954, till 1st May 1954, to file his appeal but he did not take advantage of this long period. He waited till the end for filing the appeal. There is nothing to show that the arrest was wrongful or that at the date of the arrest the Customs-authorities had any knowledge that the petitioner had not filed his appeal. The contentions that the order complained of was mala fide or that the appeal had not been filed out of time are entirely untenable.13.
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an option to pay a fine in lieu thereof bad.It has to be remembered that S.3 (2) of the Act of 1947 states that all goods to which any order under sub-s. (1) applies shall be deemed to be goods of which the import has been prohibited under S.19 of the Sea Customs Act. Admittedly sub-s. (1) of S.3 of the Act of 1947 applies to the goods with which this case isS.3 (2) of the Act of 1947 the import of these goods is to be deemed to have been prohibited under S.19 of the Sea Customs Act. It follows that action under S.167, item (8) of the Sea Customs Act can be taken in respect of these goods and they can be confiscated and the person concerned in the illegal import made liable to a penalty. Resort to S.183 of the Sea Customs Act is not necessary to justify the order of confiscation made in this case at all. Indeed S.183 does not authoriseassumes a confiscation authorised by other provisions of the Sea Customs Act and provides that on a confiscation being adjudged, an option to pay a fine in lieu of it shall be given. It cannot therefore be said, even on the assumption that learned counsel was right in his contention that S.183 as modified offends Art.14 that the order of confiscation is bad. As to whether the contention of learned counsel is right or not we decide nothing as it is not necessary to doreasons for this view we have stated earlier. The other is S.183 of the Sea Customs Act as modified by the Act ofAs so modified we have for the present purpose assumed that it offends Art.If it does it goes out as a whole. It is not really a statutory provision in two parts with regard to which it might have been possible to say that one part offends Art.14 while the other part doesthe facts of this case, it is an academic argument. Even if it was right the entire S.183 would have to be ignored but that would not have the effect of making the order of confiscation passed in this case invalid. All that the petitioner is concerned with is to show that the order of confiscation waspresent argument does not touch that point and therefore it is not necessary to consider it at all. Another similar argument was that S.167, item (8) of the Sea Customs Act itself offended Art.14 in that it left to the uncontrolled discretion of the Customs-authorities to decide the amount of the penalty to be imposed. The section makes it clear that the maximum penalty that might be imposed under it is Rs.1, 000. The discretion that the section gives must be exercised within the limit sois not an uncontrolled or unreasonable discretion. Furthermore, the discretion is vested in high Customs officers and there are appeals from their order. The imposition of the fine is really a quasi-judicial act and the test of the quantum of it is in the gravity of the offence.The object of the Act is to prevent unauthorised importation of goods and the discretion has to be exercised with that object inhad been given an opportunity and had not availed himself of it. It was also stated that in deciding not to give the petitioner an option to pay a fine in lieu of confiscation the Customs-authority had gone into certain other transactions without giving any notice to the petitioner that this would be done. It was said that the petitioner was not given an opportunity of being heard in respect of thesenotice which the Customs-authorities gave to the petitioner to show cause why the goods should not be confiscated also informed him necessarily that an order for confiscation might be made without an option to pay a fine in lieu of confiscation being given and therefore it was his fault if he did not appear at the hearing and showed cause why the order of confiscation should not be absolute but should give him an option to pay apoint of view was sought to be supported by citing the cases of two other persons who had imported similar goods at or about the same time; and who had been given the option. The facts of these other cases were however substantiallywas nothing to show in these that goods had been imported in deliberate violation of the order of the Government while in the case of the petitioner there are materials on which such a view could be formed. It appears that the petitioner as the Manager of a firm called Federal Clearing Agency had received a communication from the Customs-authorities on 30-7-1953, that Zip Chains were not covered by the notification of 16th March 1953, and within a fortnight of that communication he had placed the orders for identical goods which he now claims to be within thewas not unreasonable for the Customs-authorities to think that the petitioner had deliberately imported the goods in breach of the order of the Government and without specific licence for that purpose, and on that ground to think it proper not to give him the option. This would be so even if it was assumed that in the dispute with the Public Relations Officer the petitioner was in theis no rule of natural justice that at every stage a person is entitled to a personal hearing. Furthermore, the appeal was out ofthe petitioner had time from 3rd February 1954, till 1st May 1954, to file his appeal but he did not take advantage of this long period. He waited till the end for filing the appeal. There is nothing to show that the arrest was wrongful or that at the date of the arrest the Customs-authorities had any knowledge that the petitioner had not filed his appeal. The contentions that the order complained of was mala fide or that the appeal had not been filed out of time are entirely untenable.
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State Of Gujarat Vs. Shri Shantilal Mangaldas & Ors | may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified by the Schedule apply.We are not concerned in this case with any such notification issued by the Government, nor has it any relevance to the question in issue.56. One more contention which was apparently not raised on behalf of the first respondent before the High Court may be briefly referred to. Counsel contends that Ss. 53 and 67 in any event infringe Article 14 of the Constitution and were on that account void. Counsel relies principally upon that part of the judgment in P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) which deals with the infringement of the equality clause of the Constitution by the impugned Madras Act. Counsel submits that it is always open to the State Government to acquire lands for a public purpose of a local authority and after acquiring the lands to vest them in the local authority. If that be done, compensation will be payable under the Land Acquisition Act, 1894, but says counsel, when land is acquired for a public purpose of a local authority under the provision of the Bombay Town Planning Act the compensation which is payable is determined at a rate prevailing many years before the date on which the notification under Section 4 of the Land Acquisition Act is issued.The argument is based on no solid foundation. The method of determining compensation in respect of lands which are subject to the town-planning. scheme is prescribed in the Town Planning Act. There is no option under that Act to acquire the land either under the Land Acquisition Act or under the Town Planning Act. Once the draft town-planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: Taylor v. Taylor, (1875)1 Ch D 426.Again it cannot be said that because it is possible for the State, if so, minded, to acquire lands for a public purpose of a local authority, the statutory effect given to a town-planning scheme results in discrimination between persons similarly circumstanced. In P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) the Court struck down the acquisition on the ground that when the lands are acquired by the State Government for a housing scheme under the Madras Amending Act, the claimant gets much smaller compensation than the compensation he would get if the land or similar lands were acquired for the same public purpose under the Land Acquisition Act, 1894. It was held that the discrimination between persons whose lands were acquired for housing schemes and those whose lands were acquired for other public purposes could not be sustained on any principle of reasonable classification founded on intelligible differentia which had a rational relation to the object sought to be achieved.57. One broad ground of distinction between P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) and this case is clear: the acquisition was struck down in P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) because the State Government could resort to one of the two methods of acquisition-the Land Acquisition Act, 1894, and the Land Acquisition (Madras Amendment) Act, 1961 - and no guidance was given by the Legislature about the statute which should be resorted to in a given case of acquisition for a housing scheme.Power to choose could, therefore, be exercised arbitrarily. Under the Bombay Town Planning Act, 1955, there is no acquisition by the State Government of land needed for a town-planning scheme. When the Town Planning Scheme comes into operation the land needed by a local authority vests by virtue of S. 53(a) and that vesting, for purposes of the guarantee under Art. 31 (2) is deemed compulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of Sections 53 and 67 apply, and the compensation is determined only in the manner prescribed by the Act. There are therefore two separate provisions, one for acquisition by the State Government, and the other in which the statutory vesting of land operates as acquisition for the purpose of town-planning by the local authority. The State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act. There is no option to the local authority to resort to one or the other of the alternative methods which result in acquisition. The contention that the provisions of Sections 53 and 67 ore invalid on the ground that they deny the equal protection of the laws or equality before the laws must, therefore, stand rejected.58. The High Court has apparently not considered the other arguments which were advanced at the Bar, and has observed that it was not necessary to consider those other contentions raised in the petition. As the petition has not been heard by the High Court in respect of the other contentions which the first respondent may choose to raise, we set aside the order passed by the High Court declaring Section 53 read with Section 67 insofar as it authorised acquisition of land by the local authority under a town-planning scheme, as violative of Article 31 (2) of the Constitution, and the acquisition of the first respondents land under the City Wall Improvement Town Planning Scheme No. 5 as invalid. | 1[ds]It is settled law that clauses (1) and (2) under the amended Article guarantee different rights to owners of property. Clause (1) operates as a protection against deprivation of property save by authority of law, which , it is beyond question, must be a valid law, i.e., it must be within the legislative competence of the State Legislature and must not infringe any other fundamental right.Clause (2) guarantees that property shall not be acquired or requisitioned (except in cases provided by clause (5) save by authority of law providing for compulsory acquisition or requisition and further providing for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given. If the conditions for compulsory acquisition or requisition are fulfilled, the law is not liable to be called in question before the Courts on the ground that the compensation provided by the law is not adequate. Clause (2A) is in substance a definition clause: a law which does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State is not to be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.22. The following principles emerge from an analysis of cls. (2) and (2A): compulsory acquisition or requisition may be made for a public purpose alone, and must be made by authority of law. Law which deprives a person of property but does not transfer ownership of the property or right to possession of the property to the State or a corporation owned or controlled by the State is not a law for compulsory acquisition or requisition. The law, under the authority of which property is compulsorily acquired or requisitioned, must either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given. If these conditions are fulfilled the validity of the law cannot be questioned on the plea that it does not provide adequate compensation to the owner.It is common ground that a law for compulsory acquisition of property by a local authority for public purposes is a law for acquisition of property by the State within the meaning of that expression at defined in Article 12. The Act was reserved for the consideration of the President and received his assent on August 1, 1955, and since it provides expressly by Section 53 (a) that on the coming into force of the scheme the ownership in the lands required by the local authority for public purposes shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances, the clause contemplates transfer of ownership by law from private owners to the local authority. The Act is, therefore, a law for compulsory acquisition of land.23. We are unable to agree with counsel for the State that because the object of the Act is intended to promote public health, it falls within the exception in Article 31 (5) (b) (ii). The question is now sealed by a recent judgment of this Court Deputy Commissioner and Collector, Kamrup v. Durga Nath Sharmas case 1 SCR 561 =(AIR 1968 SC 394 ).This Court held in Durga Nath Sharmas case, (1968) 1 SCR 561 =(AIR 1968 SC 394 ) that the Assam Acquisition of Land for Flood Control and Provision of Erosion Act 6 of 1955, which provided for the acquisition of land on payment of compensation in accordance with the principles in Section 6 of that Act was a purely exproprietary measure, and being a law for acquisition of land, though for prevention of danger to life and property, was not protected by Article 31(5) (b) (ii).The first contention urged by Mr. Bindra cannot, therefore, be accepted.But, in our judgment, the contention urged by Mr. Bindra for the State of Gujarat that Sections 53 and 67 of the Act regarded as law for acquisition of land for public purposes do not infringe the fundamental right under Article 31 (2) of the Constitution is acceptable, because the Act specifies the principles on which compensation is to be determined and given.25. Article 31 guarantees that the law providing for compulsory acquisition must provide for determining and giving compensation for the property acquired. The expression "compensation" is not defined in the Constitution. Under the Land Acquisition Act compensation is always paid in terms of money. But that is no reason for holding that compensation which is guaranteed by Article 31 (2) for compulsory acquisition must be paid in terms of money alone. A law which provides for making satisfaction to an expropriated owner by allotment of other property may be deemed to be a law providing for compensation.In ordinary parlance the expression "compensation" means any thing given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay: it need not therefore necessarily be in terms of money. The phraseology of the constitutional provision also indicates that compensation need not necessarily be in terms of money, because it expressly provides that the law may specify the principles on which, and the manner in which, compensation is to be determined and "given".If it were to be in terms of money alone, the expression paid" would have been moresecond branch of the argument is not sustainable for reasons already set out, and the first branch of the argument is wholly without substance. Section 53 does not provide that the reconstituted plot is transferred or is to be deemed to be transferred from the local authority to the owner of the original plot. In terms Section 53 provides or statutory re-adjustment of the rights of the owners of the original plots of land. When the scheme comes into force all rights in the original plots are extinguished and simultaneously therewith ownership springs in the reconstituted plots. There is no vesting of the original plots in the local authority, nor transfer of the rights of the local authority in the reconstituted plots. A part or even the whole plot belonging to an owner may go to form a reconstituted plot which may be allotted to another person, or may be appropriated to public purposes under the scheme. The source of the power to appropriate the whole or a part of the original plot in forming a reconstituted plot is statutory. It does not predicate ownership of the plot in the local authority, and no process - actual or notional - of transfer is contemplated in that appropriation. The lands covered by the scheme are subjected by the Act to the power of the local authority to readjust titles, but no reconstituted plot vests at any stage in the local authority unless it is needed for a purpose of the authority. Even under clause (a) of Section 53 the vesting in a local authority of land required by it is on the coming into force of the scheme. The concept that lands vest in the local authority when the intention to make a scheme is notified is against the plain intendment of theis true that under the Act the market value of the land of which the owner is deprived at the date of declaration of intention to make a scheme determines the amount to be adjusted, and that is the guiding rule in respect of all lands covered by the scheme.The High Court was, in our judgment, right in holding that enactment of a rule determining payment or adjustment of price of land of which the owner was deprived by the scheme estimated on the market value on the date of declaration of the intention to make a scheme amounted to specification of a principle of compensation within the meaning of Article 31 (2). Specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of "market value" of the land on the date of the notification under Section 4 (1) of that Act. That is a specification of principle. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified. Whether an owner of land is given a reconstituted plot or not, the rule for determining what is to be given as recompense remains the same. It is a principle applicable to all cases in which by virtue of the operation of the Town Planning Act a person is deprived of his land whether in whole or in part.Reverting to the amendment made in Cl. (2) of Art. 31 by the Constitution. (4th Amendment) Act, 1955 it is clear that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the legislature for determination is not justiciable. It clearly follows from the terms of Article 31(2) as amended that the amount of compensation payable, if fixed by the Legislature is not justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only a challenge to the adequacy ofcompensation fixed by the Legislature - and by the use of the expression "compensation" we mean what the Legislature justly regards as proper and fair recompense for compulsory expropriation of property and not something which by abuse of legislative power though called compensation is not a recompense at all or is something illusory-is not justiciable, on the plea that it is not a just equivalent of the property compulsorily acquired, is it open to the Courts to enter upon an enquiry whether the principles which are specified by the Legislature for determining compensation do not award to the expropriated owner a justour view, such an enquiry is not open to the Courts under the statutes enacted after the amendments made in the Constitution by the Constitution (Fourth Amendment) Act. If the quantum of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent. The right declared by the Constitution guarantees that compensation shall be given before a person is compulsorily expropriated of his property for a publicis fixed as compensation by statute, or by the application of principles specified or determination of compensation is guaranteed: it does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitrariness, and permit a device to defeat the constitutional guarantee. But compensation fixed or determined on principles specified by the Legislature cannot be permitted to be challenged on the somewhat indefinite plea that it is not a just or fair equivalent.Principles may be challenged on the ground that they are irrelevant to the determination of compensation, but not on the plea that what is awarded as a result of the application of those principles is not just or fair compensation. A challenge to a statute that the principles specified by it to do not award a just equivalent will be in clear violation of the constitutional declaration that inadequacy of compensation provided is not justiciable.48.In our view, Article 31 (2) as amended is clear in its purport. If what is fixed or is determined by the application of specified principles is compensation for compulsory acquisition of property, the Courts cannot be invited to determine whether it is a just equivalent of the value of the property expropriated. In P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) the Court held that the principles laid down by the impugned statute were not open to question. That was sufficient for the purpose of the decision of the case, and the other observations were not necessary for deciding that case, and cannot be regarded as a binding decision.We are unable to agree with that part of the judgment. The Parliament had specified the principles for determining compensation of the undertaking of the company. The principles expressly related to the determination of compensation payable in respect of unused machinery in good condition and used machinery. The principles were set out avowedly for determination of compensation. The principles were not irrelevant to the determination of compensation and the compensation was not illusory. In our judgment, the Metal Corporation of India Ltd.s case, (1967) 1 SCR 255 = (AIR 1967 SC 637 ) was wrongly decided and must be overruled.Turning to the Bombay Town Planning Act, 1955, it was clear that the Legislature has specified principles for determination of compensation which has to be adjusted in determining the amount of contribution. The principle for determination of compensation cannot be said to be irrelevant, nor can the compensation determined be regarded as illusory. Being a principle relating to compensation in our judgment, it was not liable to be challenged. If what is specified is a principle for determination of compensation, the challenge to that principle on the ground that a just equivalent of what the owner is deprived is not provided, is excluded by the plain words of Article 31 (2) of the Constitution.It was urged that in any event the statute which permits the property of an owner to be compulsorily acquired by payment of market value at a date which is many years before the date on which the title of the owner is extinguished is unreasonable.This Court has, however, held in Smt. Sitabati Debi v. State of West Bengal, (1967) 2 SCR 949 that a law made under clause (2) of Article 31 is not liable to be challenged on the ground that it imposes unreasonable restrictions upon the right to hold or dispose of property within the meaning of Art. 19 (1) (f) of the Constitution.In Smt. Sitabati Debis case, (1967) 2 SCR 949 an owner of land whose property was requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948, questioned the validity of the Act by a writ petition filed in the High Court of Calcutta on the plea that it offended Article 19 (1) (f) of the Constitution. This Court unanimously held that the validity of the Act relating to acquisition and requisition cannot be questioned on the ground that it offended Article 19 (1) (f) and cannot be decided by the criterion under Article 19 (5).Again the validity of the statute cannot depend upon whether in a given case it operates harshly. If the scheme came into force within a reasonable distance of time from the date on which the declaration of intention to make a scheme was notified, it could not be contended that fixation of compensation according to the scheme of Section 67 per se made the scheme invalid. The fact that considerable time has elapsed since the declaration of intention to make a scheme, cannot be a ground for declaring the section ultra vires. It is also contended that in cases where no reconstituted plot is allotted to a person and his land is wholly appropriate for a public purpose in a scheme, the owner would be entitled to the value of the land as prevailing many years before the extinction of interest without the benefit of the steep rise in prices which has taken place all over the country. But if Section 71 read with Section 67 lays down a principle of valuation it cannot be struck down on the ground that because of the exigencies of the scheme, it is, not possible to allot a reconstituted plot to an owner of land covered by the scheme.Our attention was invited to Sections 81 and 84 of the Bombay Town Planning Act, 1955. Section 81 merely provides that the land needed for the purpose of a town planning scheme or development plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. This provision only declares what is implicit in the scheme of the Act. Section 84 only contemplates a special class of cases in which the land which is included in a town planning scheme is needed by the State Government for a public purpose other than that for which it is included in the scheme. In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified by the Schedule apply.We are not concerned in this case with any such notification issued by the Government, nor has it any relevance to the question inthe Bombay Town Planning Act, 1955, there is no acquisition by the State Government of land needed for a town-planning scheme. When the Town Planning Scheme comes into operation the land needed by a local authority vests by virtue of S. 53(a) and that vesting, for purposes of the guarantee under Art. 31 (2) is deemed compulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of Sections 53 and 67 apply, and the compensation is determined only in the manner prescribed by the Act. There are therefore two separate provisions, one for acquisition by the State Government, and the other in which the statutory vesting of land operates as acquisition for the purpose of town-planning by the local authority. The State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act. There is no option to the local authority to resort to one or the other of the alternative methods which result in acquisition. The contention that the provisions of Sections 53 and 67 ore invalid on the ground that they deny the equal protection of the laws or equality before the laws must, therefore, standThe High Court has apparently not considered the other arguments which were advanced at the Bar, and has observed that it was not necessary to consider those other contentions raised in the petition. As the petition has not been heard by the High Court in respect of the other contentions which the first respondent may choose to raise, we set aside the order passed by the High Court declaring Section 53 read with Section 67 insofar as it authorised acquisition of land by the local authority under a town-planning scheme, as violative of Article 31 (2) of the Constitution, and the acquisition of the first respondents land under the City Wall Improvement Town Planning Scheme No. 5 as invalid | 1 | 15,700 | 3,478 | ### Instruction:
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may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified by the Schedule apply.We are not concerned in this case with any such notification issued by the Government, nor has it any relevance to the question in issue.56. One more contention which was apparently not raised on behalf of the first respondent before the High Court may be briefly referred to. Counsel contends that Ss. 53 and 67 in any event infringe Article 14 of the Constitution and were on that account void. Counsel relies principally upon that part of the judgment in P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) which deals with the infringement of the equality clause of the Constitution by the impugned Madras Act. Counsel submits that it is always open to the State Government to acquire lands for a public purpose of a local authority and after acquiring the lands to vest them in the local authority. If that be done, compensation will be payable under the Land Acquisition Act, 1894, but says counsel, when land is acquired for a public purpose of a local authority under the provision of the Bombay Town Planning Act the compensation which is payable is determined at a rate prevailing many years before the date on which the notification under Section 4 of the Land Acquisition Act is issued.The argument is based on no solid foundation. The method of determining compensation in respect of lands which are subject to the town-planning. scheme is prescribed in the Town Planning Act. There is no option under that Act to acquire the land either under the Land Acquisition Act or under the Town Planning Act. Once the draft town-planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: Taylor v. Taylor, (1875)1 Ch D 426.Again it cannot be said that because it is possible for the State, if so, minded, to acquire lands for a public purpose of a local authority, the statutory effect given to a town-planning scheme results in discrimination between persons similarly circumstanced. In P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) the Court struck down the acquisition on the ground that when the lands are acquired by the State Government for a housing scheme under the Madras Amending Act, the claimant gets much smaller compensation than the compensation he would get if the land or similar lands were acquired for the same public purpose under the Land Acquisition Act, 1894. It was held that the discrimination between persons whose lands were acquired for housing schemes and those whose lands were acquired for other public purposes could not be sustained on any principle of reasonable classification founded on intelligible differentia which had a rational relation to the object sought to be achieved.57. One broad ground of distinction between P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) and this case is clear: the acquisition was struck down in P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) because the State Government could resort to one of the two methods of acquisition-the Land Acquisition Act, 1894, and the Land Acquisition (Madras Amendment) Act, 1961 - and no guidance was given by the Legislature about the statute which should be resorted to in a given case of acquisition for a housing scheme.Power to choose could, therefore, be exercised arbitrarily. Under the Bombay Town Planning Act, 1955, there is no acquisition by the State Government of land needed for a town-planning scheme. When the Town Planning Scheme comes into operation the land needed by a local authority vests by virtue of S. 53(a) and that vesting, for purposes of the guarantee under Art. 31 (2) is deemed compulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of Sections 53 and 67 apply, and the compensation is determined only in the manner prescribed by the Act. There are therefore two separate provisions, one for acquisition by the State Government, and the other in which the statutory vesting of land operates as acquisition for the purpose of town-planning by the local authority. The State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act. There is no option to the local authority to resort to one or the other of the alternative methods which result in acquisition. The contention that the provisions of Sections 53 and 67 ore invalid on the ground that they deny the equal protection of the laws or equality before the laws must, therefore, stand rejected.58. The High Court has apparently not considered the other arguments which were advanced at the Bar, and has observed that it was not necessary to consider those other contentions raised in the petition. As the petition has not been heard by the High Court in respect of the other contentions which the first respondent may choose to raise, we set aside the order passed by the High Court declaring Section 53 read with Section 67 insofar as it authorised acquisition of land by the local authority under a town-planning scheme, as violative of Article 31 (2) of the Constitution, and the acquisition of the first respondents land under the City Wall Improvement Town Planning Scheme No. 5 as invalid.
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clear that the Legislature has specified principles for determination of compensation which has to be adjusted in determining the amount of contribution. The principle for determination of compensation cannot be said to be irrelevant, nor can the compensation determined be regarded as illusory. Being a principle relating to compensation in our judgment, it was not liable to be challenged. If what is specified is a principle for determination of compensation, the challenge to that principle on the ground that a just equivalent of what the owner is deprived is not provided, is excluded by the plain words of Article 31 (2) of the Constitution.It was urged that in any event the statute which permits the property of an owner to be compulsorily acquired by payment of market value at a date which is many years before the date on which the title of the owner is extinguished is unreasonable.This Court has, however, held in Smt. Sitabati Debi v. State of West Bengal, (1967) 2 SCR 949 that a law made under clause (2) of Article 31 is not liable to be challenged on the ground that it imposes unreasonable restrictions upon the right to hold or dispose of property within the meaning of Art. 19 (1) (f) of the Constitution.In Smt. Sitabati Debis case, (1967) 2 SCR 949 an owner of land whose property was requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948, questioned the validity of the Act by a writ petition filed in the High Court of Calcutta on the plea that it offended Article 19 (1) (f) of the Constitution. This Court unanimously held that the validity of the Act relating to acquisition and requisition cannot be questioned on the ground that it offended Article 19 (1) (f) and cannot be decided by the criterion under Article 19 (5).Again the validity of the statute cannot depend upon whether in a given case it operates harshly. If the scheme came into force within a reasonable distance of time from the date on which the declaration of intention to make a scheme was notified, it could not be contended that fixation of compensation according to the scheme of Section 67 per se made the scheme invalid. The fact that considerable time has elapsed since the declaration of intention to make a scheme, cannot be a ground for declaring the section ultra vires. It is also contended that in cases where no reconstituted plot is allotted to a person and his land is wholly appropriate for a public purpose in a scheme, the owner would be entitled to the value of the land as prevailing many years before the extinction of interest without the benefit of the steep rise in prices which has taken place all over the country. But if Section 71 read with Section 67 lays down a principle of valuation it cannot be struck down on the ground that because of the exigencies of the scheme, it is, not possible to allot a reconstituted plot to an owner of land covered by the scheme.Our attention was invited to Sections 81 and 84 of the Bombay Town Planning Act, 1955. Section 81 merely provides that the land needed for the purpose of a town planning scheme or development plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. This provision only declares what is implicit in the scheme of the Act. Section 84 only contemplates a special class of cases in which the land which is included in a town planning scheme is needed by the State Government for a public purpose other than that for which it is included in the scheme. In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified by the Schedule apply.We are not concerned in this case with any such notification issued by the Government, nor has it any relevance to the question inthe Bombay Town Planning Act, 1955, there is no acquisition by the State Government of land needed for a town-planning scheme. When the Town Planning Scheme comes into operation the land needed by a local authority vests by virtue of S. 53(a) and that vesting, for purposes of the guarantee under Art. 31 (2) is deemed compulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of Sections 53 and 67 apply, and the compensation is determined only in the manner prescribed by the Act. There are therefore two separate provisions, one for acquisition by the State Government, and the other in which the statutory vesting of land operates as acquisition for the purpose of town-planning by the local authority. The State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act. There is no option to the local authority to resort to one or the other of the alternative methods which result in acquisition. The contention that the provisions of Sections 53 and 67 ore invalid on the ground that they deny the equal protection of the laws or equality before the laws must, therefore, standThe High Court has apparently not considered the other arguments which were advanced at the Bar, and has observed that it was not necessary to consider those other contentions raised in the petition. As the petition has not been heard by the High Court in respect of the other contentions which the first respondent may choose to raise, we set aside the order passed by the High Court declaring Section 53 read with Section 67 insofar as it authorised acquisition of land by the local authority under a town-planning scheme, as violative of Article 31 (2) of the Constitution, and the acquisition of the first respondents land under the City Wall Improvement Town Planning Scheme No. 5 as invalid
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Wg. Cdr. Ashwini Kumar Handa (Retd.) Vs. Union of India & Others | incorporated, which would be enforceable in law. These are:(i) Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003(2) R.C.R.(Civil) 554 : (2003) 5 SCC 705 "(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same.(2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in section 73 of the Contract Act.(3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.(4) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation."(ii) Subir Ghosh v. Indian Iron and Steel Company, 1976 SCC OnLine Cal 222 wherein the Calcutta High Court laid down the following proposition of law:"It was contended for the appellant that the agreement was one-sided, against public policy and constituted restraint on trade and that the claim by the company came specifically within section 74 of the Contract Act, 1872, and notwithstanding the amount on the breach of the covenant. Normally, when the amount payable is either disproportionately more than the actual damage suffered on the breach or remain the same irrespective of the varying damages which may be suffered due to breach of different covenants, the amount so payable partakes the nature of penalty. In the instant case what was payable under the bond reasonably represents the damage which the company is likely to suffer in case the appellant leaves the company in the midst of the training, and as such, the amount so payable is nothing but a genuine pre-estimate of the damage which the company is liable to sustain in the event of breach on the part of the appellant."9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue of pre-estimated liquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years study leave;(ii) this study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during study leave.In the aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case. | 0[ds]9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue ofliquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years studythis study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during studythe aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case. | 0 | 2,817 | 636 | ### 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:
incorporated, which would be enforceable in law. These are:(i) Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003(2) R.C.R.(Civil) 554 : (2003) 5 SCC 705 "(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same.(2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in section 73 of the Contract Act.(3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.(4) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation."(ii) Subir Ghosh v. Indian Iron and Steel Company, 1976 SCC OnLine Cal 222 wherein the Calcutta High Court laid down the following proposition of law:"It was contended for the appellant that the agreement was one-sided, against public policy and constituted restraint on trade and that the claim by the company came specifically within section 74 of the Contract Act, 1872, and notwithstanding the amount on the breach of the covenant. Normally, when the amount payable is either disproportionately more than the actual damage suffered on the breach or remain the same irrespective of the varying damages which may be suffered due to breach of different covenants, the amount so payable partakes the nature of penalty. In the instant case what was payable under the bond reasonably represents the damage which the company is likely to suffer in case the appellant leaves the company in the midst of the training, and as such, the amount so payable is nothing but a genuine pre-estimate of the damage which the company is liable to sustain in the event of breach on the part of the appellant."9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue of pre-estimated liquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years study leave;(ii) this study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during study leave.In the aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case.
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9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue ofliquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years studythis study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during studythe aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case.
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Princ.Secr.,Govt.Of Karnataka Vs. Ragini Narayan | which requires that any alteration of the deed or amendment therein would require concurrence of Donor Trustee and that of the State Government.16. Though on behalf of the appellants and the Respondent no.2, it is contended that the State Government had not given any approval to the amendment relied upon on behalf of the plaintiff, but certain documents on record clearly show that there was approval of the State Government to the disputed amendment of 1994. One of such documents (dated13.8.1995) is Annexure A-7 filed by the Respondent No.2 with the additional documents, which is copy of the ‘Deed of Appointment’ of the Government of Karnataka as successor Donor Trustee of executant B.S. Narayan. In our opinion, the appellants cannot approbate and reprobate at the same time. On one hand they rely on this document to nominate M.R. Srinivasa Murthy, and appoint him as Donor Trustee, and on the other hand, they are not ready to accept the approval of State Government to the Amendment Deed registered on 30.01.1995 on the basis of which the executant has exercised the powers in nominating the Donor Trustee. Para 2 of Annexure A-7 i.e. ‘Deed of Appointment’ dated 13.08.1995 executed by B.S. Narayan reads as under:“…….WHEREAS the above executant is the Donor Trustee of a Registered Educational Trust, created under document dated 02.12.1957 and registered as Document No.2944/57-58 in Book I, Volume 48, pages 10 to 35, registered in the Office of the Sub-Registrar, Bangalore City South, and WHEREAS the above document created the B.M.S. Educational Trust, which document was subsequently amended once by registered document No. 498/81-82 dated 25.06.1981 and further amended by a second document dated 30.01.1995 and registered as document No.531/94-95, after following the formalities required in regard to amendment, which included the approval of the Government of the State of Karnataka and ……….”(emphasis supplied)17. Another important document which throws light on this point is Annexure P-7 dated 7.11.1995 which is copy of the letter issued by the Government of Karnataka to the Member Secretary of B.M.S. Trust, Bangalore appointing M.R. Srinivasa Murthy, IAS, as Donor Trustee. Said document is reproduced below:No.ED108TEC95“GOVERNMENT OF KARNATAKAKarnataka Government Secretariat,Sachivalaya-II, Bangalore,Dated: November 07, 1995From:The Principal Secretary to Govt. of Karnataka,Education Department, Bangalore.ToThe Member Secretary,B.M. Srinivasaiah Educational Trust,Bangalore.SirSub: Acceptance of appointment as a Donor Trustee by the Government of Karnataka for B.M. Srinivasaiah Educational Trust.Ref: 1. Letter from Sri Y. Ramachandra, Chairman of the Trust, dtd.15.09.19952. Deed of Appointment dtd. 13.08.95 executed by the late Donor Trustee Sri B.S. Narayan.….With reference to the above mentioned Communication/documents, the Government of Karnataka has accepted the nomination as the Donor-Trustee of B.M. Srinivasaiah Educational Trust and is assuming the role of Donor-Trustee with immediate effect. Sri M.R. Sreenivasa Murthy, IAS, is hereby appointed to function as Donor-Trustee on behalf of the Government of Karnataka with immediate effect.Please extend all co-operation to him and assist him in the discharge of his functions.Yours faithfully,Sd/-(U.P. SHARMA)PRINCIPAL SECRETARY TO GOVERNMENTEDUCATION DEPARTMENT.”18. From the above mentioned letter, it is clear that Deed of Appointment dated 13.08.1995 was referred by the State Government, and it cannot be said that the State Government had not approved the Resolution dated 10.12.1994 on the basis of which Deed of Amendment was registered on 30.01.1995. That being so, now we have to examine whether it is the plaintiff who was validly nominated Donor Trustee or the State Government? From the para (IV)(i) of the original Trust Deed dated 02.12.1957, it is clear that B.S. Narayan was to continue as Donor Trustee during his life time whereafter he was to be succeeded by his lineal descendant, and if the mode of succession fails then, power of the appointment of the Trust Deed was to vest with the State Government. Amendment of 1978 as shown in the chart quoted earlier, makes it clear that name of Minnie Narayan was added in para (IV)(i) as nominee to succeed from B.S. Narayan, and thereafter senior most of the lineal descendant, and if the mode of succession fail, the powers were to be exercised by the State Government. It appears that after Minnie Narayan was divorced by B.S. Narayan, and he (B.S. Narayan) got married to Ragini Narayan (plaintiff) whereafter further amendment was proposed and passed through Resolution dated 10.12.1994 (as mentioned in amended deed registered on 30.01.1995) and by this amendment i.e. of 1994 name of Minnie Narayan was deleted, and it was mentioned that after the life time of B.S. Narayan, his senior most lineal descendant or a member of his family or his wife was to succeed, and if mode of succession fails, then powers of Donor Trustee were to be exercised by the State Government.19. There is concurrent finding of fact of the courts below that Ragini Narayan was the wife of B.S. Narayan Donor Trustee, at the time of his death, as such it cannot be said that mode of succession mentioned in para (IV)(i) failed. Whether it is amendment of 1978 or 1995 the expression "or his wife” is there. In our opinion the words-‘or his wife’ in the amendment of 1978 to which the appellants admittedly approved refer to wife of the Donor Trustee. Same expression is retained in the 30.01.1995 amendment. The amendment of 1978 was, admittedly, approved by the State of Karnataka. Insofar as the amendment of 1994 is concerned, we have already held that by virtue of Ex.A-7 dated 13.8.1995, the recital contained therein and in view of the letter of the State Government dated 7.11.1995 the consent of the State Government to the amendment of 1994 can be readily inferred. Therefore, we do not find any error in the impugned order passed by the High Court. However, we clarify that any nominee appointed by the State Government as Trustee will be entitled to function as ordinary trustee in the Council of Trustees as provided in the Trust Deed but not as the Donor Trustee till the succession as mentioned in the Trust Deed (as amended) fails.20. For the reasons as discussed above, | 0[ds]19. There is concurrent finding of fact of the courts below that Ragini Narayan was the wife of B.S. Narayan Donor Trustee, at the time of his death, as such it cannot be said that mode of succession mentioned in para (IV)(i) failed. Whether it is amendment of 1978 or 1995 the expression "or hisis there. In our opinion the words-‘or hisin the amendment of 1978 to which the appellants admittedly approved refer to wife of the Donor Trustee. Same expression is retained in the 30.01.1995 amendment. The amendment of 1978 was, admittedly, approved by the State of Karnataka. Insofar as the amendment of 1994 is concerned, we have already held that by virtue of Ex.A-7 dated 13.8.1995, the recital contained therein and in view of the letter of the State Government dated 7.11.1995 the consent of the State Government to the amendment of 1994 can be readily inferred. Therefore, we do not find any error in the impugned order passed by the High Court. However, we clarify that any nominee appointed by the State Government as Trustee will be entitled to function as ordinary trustee in the Council of Trustees as provided in the Trust Deed but not as the Donor Trustee till the succession as mentioned in the Trust Deed (as amended) fails. | 0 | 4,149 | 248 | ### 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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which requires that any alteration of the deed or amendment therein would require concurrence of Donor Trustee and that of the State Government.16. Though on behalf of the appellants and the Respondent no.2, it is contended that the State Government had not given any approval to the amendment relied upon on behalf of the plaintiff, but certain documents on record clearly show that there was approval of the State Government to the disputed amendment of 1994. One of such documents (dated13.8.1995) is Annexure A-7 filed by the Respondent No.2 with the additional documents, which is copy of the ‘Deed of Appointment’ of the Government of Karnataka as successor Donor Trustee of executant B.S. Narayan. In our opinion, the appellants cannot approbate and reprobate at the same time. On one hand they rely on this document to nominate M.R. Srinivasa Murthy, and appoint him as Donor Trustee, and on the other hand, they are not ready to accept the approval of State Government to the Amendment Deed registered on 30.01.1995 on the basis of which the executant has exercised the powers in nominating the Donor Trustee. Para 2 of Annexure A-7 i.e. ‘Deed of Appointment’ dated 13.08.1995 executed by B.S. Narayan reads as under:“…….WHEREAS the above executant is the Donor Trustee of a Registered Educational Trust, created under document dated 02.12.1957 and registered as Document No.2944/57-58 in Book I, Volume 48, pages 10 to 35, registered in the Office of the Sub-Registrar, Bangalore City South, and WHEREAS the above document created the B.M.S. Educational Trust, which document was subsequently amended once by registered document No. 498/81-82 dated 25.06.1981 and further amended by a second document dated 30.01.1995 and registered as document No.531/94-95, after following the formalities required in regard to amendment, which included the approval of the Government of the State of Karnataka and ……….”(emphasis supplied)17. Another important document which throws light on this point is Annexure P-7 dated 7.11.1995 which is copy of the letter issued by the Government of Karnataka to the Member Secretary of B.M.S. Trust, Bangalore appointing M.R. Srinivasa Murthy, IAS, as Donor Trustee. Said document is reproduced below:No.ED108TEC95“GOVERNMENT OF KARNATAKAKarnataka Government Secretariat,Sachivalaya-II, Bangalore,Dated: November 07, 1995From:The Principal Secretary to Govt. of Karnataka,Education Department, Bangalore.ToThe Member Secretary,B.M. Srinivasaiah Educational Trust,Bangalore.SirSub: Acceptance of appointment as a Donor Trustee by the Government of Karnataka for B.M. Srinivasaiah Educational Trust.Ref: 1. Letter from Sri Y. Ramachandra, Chairman of the Trust, dtd.15.09.19952. Deed of Appointment dtd. 13.08.95 executed by the late Donor Trustee Sri B.S. Narayan.….With reference to the above mentioned Communication/documents, the Government of Karnataka has accepted the nomination as the Donor-Trustee of B.M. Srinivasaiah Educational Trust and is assuming the role of Donor-Trustee with immediate effect. Sri M.R. Sreenivasa Murthy, IAS, is hereby appointed to function as Donor-Trustee on behalf of the Government of Karnataka with immediate effect.Please extend all co-operation to him and assist him in the discharge of his functions.Yours faithfully,Sd/-(U.P. SHARMA)PRINCIPAL SECRETARY TO GOVERNMENTEDUCATION DEPARTMENT.”18. From the above mentioned letter, it is clear that Deed of Appointment dated 13.08.1995 was referred by the State Government, and it cannot be said that the State Government had not approved the Resolution dated 10.12.1994 on the basis of which Deed of Amendment was registered on 30.01.1995. That being so, now we have to examine whether it is the plaintiff who was validly nominated Donor Trustee or the State Government? From the para (IV)(i) of the original Trust Deed dated 02.12.1957, it is clear that B.S. Narayan was to continue as Donor Trustee during his life time whereafter he was to be succeeded by his lineal descendant, and if the mode of succession fails then, power of the appointment of the Trust Deed was to vest with the State Government. Amendment of 1978 as shown in the chart quoted earlier, makes it clear that name of Minnie Narayan was added in para (IV)(i) as nominee to succeed from B.S. Narayan, and thereafter senior most of the lineal descendant, and if the mode of succession fail, the powers were to be exercised by the State Government. It appears that after Minnie Narayan was divorced by B.S. Narayan, and he (B.S. Narayan) got married to Ragini Narayan (plaintiff) whereafter further amendment was proposed and passed through Resolution dated 10.12.1994 (as mentioned in amended deed registered on 30.01.1995) and by this amendment i.e. of 1994 name of Minnie Narayan was deleted, and it was mentioned that after the life time of B.S. Narayan, his senior most lineal descendant or a member of his family or his wife was to succeed, and if mode of succession fails, then powers of Donor Trustee were to be exercised by the State Government.19. There is concurrent finding of fact of the courts below that Ragini Narayan was the wife of B.S. Narayan Donor Trustee, at the time of his death, as such it cannot be said that mode of succession mentioned in para (IV)(i) failed. Whether it is amendment of 1978 or 1995 the expression "or his wife” is there. In our opinion the words-‘or his wife’ in the amendment of 1978 to which the appellants admittedly approved refer to wife of the Donor Trustee. Same expression is retained in the 30.01.1995 amendment. The amendment of 1978 was, admittedly, approved by the State of Karnataka. Insofar as the amendment of 1994 is concerned, we have already held that by virtue of Ex.A-7 dated 13.8.1995, the recital contained therein and in view of the letter of the State Government dated 7.11.1995 the consent of the State Government to the amendment of 1994 can be readily inferred. Therefore, we do not find any error in the impugned order passed by the High Court. However, we clarify that any nominee appointed by the State Government as Trustee will be entitled to function as ordinary trustee in the Council of Trustees as provided in the Trust Deed but not as the Donor Trustee till the succession as mentioned in the Trust Deed (as amended) fails.20. For the reasons as discussed above,
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19. There is concurrent finding of fact of the courts below that Ragini Narayan was the wife of B.S. Narayan Donor Trustee, at the time of his death, as such it cannot be said that mode of succession mentioned in para (IV)(i) failed. Whether it is amendment of 1978 or 1995 the expression "or hisis there. In our opinion the words-‘or hisin the amendment of 1978 to which the appellants admittedly approved refer to wife of the Donor Trustee. Same expression is retained in the 30.01.1995 amendment. The amendment of 1978 was, admittedly, approved by the State of Karnataka. Insofar as the amendment of 1994 is concerned, we have already held that by virtue of Ex.A-7 dated 13.8.1995, the recital contained therein and in view of the letter of the State Government dated 7.11.1995 the consent of the State Government to the amendment of 1994 can be readily inferred. Therefore, we do not find any error in the impugned order passed by the High Court. However, we clarify that any nominee appointed by the State Government as Trustee will be entitled to function as ordinary trustee in the Council of Trustees as provided in the Trust Deed but not as the Donor Trustee till the succession as mentioned in the Trust Deed (as amended) fails.
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M/s. Rattan Lal & Company & Another Vs. Assessing Authority Patiala & Another | whether to ask for a refund or not.This hardly can be said to create a discrimination.14. Lastly, it is contended that there is a delegated legislation in that the maximum has been provided without indication of the circumstances under which the tax is to be levied. This, it is said, creates unguided delegation to administrative authority, the function of the Legislature. It is to be noticed that the Central Act itself gives power to the Legislature to choose a rate of tax at not more than 3 per cent of the taxable turnover. The tax levied is well within that limit and therefore the Legislature has chosen the maximum and has left it free to the authorities to impose the tax within that maximum regard being had to the requirements of revenue and the expenditure necessary for the State.15. We may now deal with some arguments which are common to both sets of cases before considering the case of the Haryana amendment.It is argued that the reorganization of the State took place on November 1, 1966 and the amendment in some of its parts seeks to amend the original Act from a date anterior to this date. In other words, the Legislature of one of the States seeks to amend a law passed by the composite State. This argument entirely misunderstands the position of the original Act after the reorganization. That Act applied now as an independent Act to each of the areas and is subject to the legislative competence of the Legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted, then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Act makes the laws applicable to the new areas until superseded, amended or altered by the appropriate Legislature in the new States. This is what the Legislature has done and there is nothing that can be said against such amendment.16. In regard to Haryana cases also the same arguments are urged. It is contended that the amended Act there also offends Section 15 for the reasons which we have given.Neither the amendment of S. 55 in this area nor the introduction of Section 11-AA for refund offends against Section 15 of the Central Act or the equality clause of the Constitution. It is said that pending cases will always be reconsidered whether or not an application in that behalf is made but in the case of disposed-of cases it depends upon the party to intimate in writing that he has no objection to the assessment or reassessment already made. If any objection can be taken, it will be by those whose cases are pending and not by those whose cases have been closed. The option to submit to the assessment is open to every one alike and there is no discrimination if a party wants that his case need not be reconsidered. He has only to state that in writing and that would be the end of the matter.If he wants his case to be reconsidered, then he can go before the Tribunal and get his case reconsidered.17. It is also urged in this connection that there is a discrimination between the imported goods and local goods.It is said that the discrimination is also between the first purchase in the case of imported goods and last sale in the case of local goods. Since the imported goods might be more expensive by reason of freight, etc. or intermediary sales having taken place it is said, that the burden of tax will be heavier and therefore this will offend against the equality clause and Art. 304 of the Constitution. In our opinion this argument is without any substance. The rate of tax is same in every case. In State of Madras v. N. K. Nataraja Mudaliar, Civil Appeal No. 763 of 1967, D/- 18-4-1968 (reported in AIR 1969 SC 147), this Court stated that the essence of Arts. 301 and 303 is to enable the State by a law"to impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in the State are subject, so however, as not to discriminate between goods so imported and goods so manufactured or produced."It was pointed out by this Court that"imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced (sic) (in the State?). Article 304 has no application."18. Here also the tax is at the same rate and therefore the tax cannot be said to be higher in the case of imported goods. It may be that when the rate is applied the resulting tax is somewhat higher but that does not offend against the equality contemplated by Art. 304. That is the consequence of ad valorem tax being levied at a particular rate. So long as the rate is the same. Art. 304 is satisfied. Even in the case of local manufacturers, if their cost of production varies, the net tax collected will be more or less in some cases but that does not create any inequality because inequality is not the result of the tax but results from the cost of production of the goods or the cost of their importation. This ground, therefore, has also no substance. We do not think it necessary to set down here the provisions of the Haryana Amendment Act because they follow the scheme of the Punjab Amendment Act in substance and what we have said in regard to the Punjab Amending Act applies mutatis mutandis to Haryana Amendment Act also.19. | 0[ds]In our opinion, therefore, the present provisions of the Act are quite clear and are quite sufficient to make the amended Act accord with the Central Act. The arguments noted in the earlier case of this Court do not therefore arise.It will thus be seen that the present Act does not suffer from any of the defects from which the unamended Act had suffered.It is, however, contended that the Act has been made retrospective but no machinery is provided to discover if the declared goods were assessed to tax more than once. As we have already pointed out, the matter is within the ken of the dealer himself and it is for him to decide whether he would not claim the benefit of S. 11AA and ask for a refund or in future transactions delete the sales from his taxable turnover when he is not the last dealer liable to pay the tax.Therefore the retrospectively of the Act does not make any difference.It is not contended before us that it was not within the competence of the Punjab Legislature to pass such an Act retrospectively. The defect pointed out is the self-same defect which was noticed in Bhawami Mills case. But that defect no longeris to be noticed that the Central Act itself gives power to the Legislature to choose a rate of tax at not more than 3 per cent of the taxable turnover. The tax levied is well within that limit and therefore the Legislature has chosen the maximum and has left it free to the authorities to impose the tax within that maximum regard being had to the requirements of revenue and the expenditure necessary for theargument entirely misunderstands the position of the original Act after the reorganization. That Act applied now as an independent Act to each of the areas and is subject to the legislative competence of the Legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted, then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Act makes the laws applicable to the new areas until superseded, amended or altered by the appropriate Legislature in the new States. This is what the Legislature has done and there is nothing that can be said against suchany objection can be taken, it will be by those whose cases are pending and not by those whose cases have been closed. The option to submit to the assessment is open to every one alike and there is no discrimination if a party wants that his case need not be reconsidered. He has only to state that in writing and that would be the end of the matter.If he wants his case to be reconsidered, then he can go before the Tribunal and get his caserate of tax is same in every case. In State of Madras v. N. K. Nataraja Mudaliar, Civil Appeal No. 763 of 1967, D/- 18-4-1968 (reported in AIR 1969 SC 147), this Court stated that the essence of Arts. 301 and 303 is to enable the State by a law"to impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in the State are subject, so however, as not to discriminate between goods so imported and goods so manufactured or produced."It was pointed out by this Court that"imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced (sic) (in the State?). Article 304 has no application.Here also the tax is at the same rate and therefore the tax cannot be said to be higher in the case of imported goods. It may be that when the rate is applied the resulting tax is somewhat higher but that does not offend against the equality contemplated by Art. 304. That is the consequence of ad valorem tax being levied at a particular rate. So long as the rate is the same. Art. 304 is satisfied. Even in the case of local manufacturers, if their cost of production varies, the net tax collected will be more or less in some cases but that does not create any inequality because inequality is not the result of the tax but results from the cost of production of the goods or the cost of their importation. This ground, therefore, has also no substance. We do not think it necessary to set down here the provisions of the Haryana Amendment Act because they follow the scheme of the Punjab Amendment Act in substance and what we have said in regard to the Punjab Amending Act applies mutatis mutandis to Haryana Amendment Act also. | 0 | 5,686 | 910 | ### Instruction:
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whether to ask for a refund or not.This hardly can be said to create a discrimination.14. Lastly, it is contended that there is a delegated legislation in that the maximum has been provided without indication of the circumstances under which the tax is to be levied. This, it is said, creates unguided delegation to administrative authority, the function of the Legislature. It is to be noticed that the Central Act itself gives power to the Legislature to choose a rate of tax at not more than 3 per cent of the taxable turnover. The tax levied is well within that limit and therefore the Legislature has chosen the maximum and has left it free to the authorities to impose the tax within that maximum regard being had to the requirements of revenue and the expenditure necessary for the State.15. We may now deal with some arguments which are common to both sets of cases before considering the case of the Haryana amendment.It is argued that the reorganization of the State took place on November 1, 1966 and the amendment in some of its parts seeks to amend the original Act from a date anterior to this date. In other words, the Legislature of one of the States seeks to amend a law passed by the composite State. This argument entirely misunderstands the position of the original Act after the reorganization. That Act applied now as an independent Act to each of the areas and is subject to the legislative competence of the Legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted, then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Act makes the laws applicable to the new areas until superseded, amended or altered by the appropriate Legislature in the new States. This is what the Legislature has done and there is nothing that can be said against such amendment.16. In regard to Haryana cases also the same arguments are urged. It is contended that the amended Act there also offends Section 15 for the reasons which we have given.Neither the amendment of S. 55 in this area nor the introduction of Section 11-AA for refund offends against Section 15 of the Central Act or the equality clause of the Constitution. It is said that pending cases will always be reconsidered whether or not an application in that behalf is made but in the case of disposed-of cases it depends upon the party to intimate in writing that he has no objection to the assessment or reassessment already made. If any objection can be taken, it will be by those whose cases are pending and not by those whose cases have been closed. The option to submit to the assessment is open to every one alike and there is no discrimination if a party wants that his case need not be reconsidered. He has only to state that in writing and that would be the end of the matter.If he wants his case to be reconsidered, then he can go before the Tribunal and get his case reconsidered.17. It is also urged in this connection that there is a discrimination between the imported goods and local goods.It is said that the discrimination is also between the first purchase in the case of imported goods and last sale in the case of local goods. Since the imported goods might be more expensive by reason of freight, etc. or intermediary sales having taken place it is said, that the burden of tax will be heavier and therefore this will offend against the equality clause and Art. 304 of the Constitution. In our opinion this argument is without any substance. The rate of tax is same in every case. In State of Madras v. N. K. Nataraja Mudaliar, Civil Appeal No. 763 of 1967, D/- 18-4-1968 (reported in AIR 1969 SC 147), this Court stated that the essence of Arts. 301 and 303 is to enable the State by a law"to impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in the State are subject, so however, as not to discriminate between goods so imported and goods so manufactured or produced."It was pointed out by this Court that"imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced (sic) (in the State?). Article 304 has no application."18. Here also the tax is at the same rate and therefore the tax cannot be said to be higher in the case of imported goods. It may be that when the rate is applied the resulting tax is somewhat higher but that does not offend against the equality contemplated by Art. 304. That is the consequence of ad valorem tax being levied at a particular rate. So long as the rate is the same. Art. 304 is satisfied. Even in the case of local manufacturers, if their cost of production varies, the net tax collected will be more or less in some cases but that does not create any inequality because inequality is not the result of the tax but results from the cost of production of the goods or the cost of their importation. This ground, therefore, has also no substance. We do not think it necessary to set down here the provisions of the Haryana Amendment Act because they follow the scheme of the Punjab Amendment Act in substance and what we have said in regard to the Punjab Amending Act applies mutatis mutandis to Haryana Amendment Act also.19.
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In our opinion, therefore, the present provisions of the Act are quite clear and are quite sufficient to make the amended Act accord with the Central Act. The arguments noted in the earlier case of this Court do not therefore arise.It will thus be seen that the present Act does not suffer from any of the defects from which the unamended Act had suffered.It is, however, contended that the Act has been made retrospective but no machinery is provided to discover if the declared goods were assessed to tax more than once. As we have already pointed out, the matter is within the ken of the dealer himself and it is for him to decide whether he would not claim the benefit of S. 11AA and ask for a refund or in future transactions delete the sales from his taxable turnover when he is not the last dealer liable to pay the tax.Therefore the retrospectively of the Act does not make any difference.It is not contended before us that it was not within the competence of the Punjab Legislature to pass such an Act retrospectively. The defect pointed out is the self-same defect which was noticed in Bhawami Mills case. But that defect no longeris to be noticed that the Central Act itself gives power to the Legislature to choose a rate of tax at not more than 3 per cent of the taxable turnover. The tax levied is well within that limit and therefore the Legislature has chosen the maximum and has left it free to the authorities to impose the tax within that maximum regard being had to the requirements of revenue and the expenditure necessary for theargument entirely misunderstands the position of the original Act after the reorganization. That Act applied now as an independent Act to each of the areas and is subject to the legislative competence of the Legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted, then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Act makes the laws applicable to the new areas until superseded, amended or altered by the appropriate Legislature in the new States. This is what the Legislature has done and there is nothing that can be said against suchany objection can be taken, it will be by those whose cases are pending and not by those whose cases have been closed. The option to submit to the assessment is open to every one alike and there is no discrimination if a party wants that his case need not be reconsidered. He has only to state that in writing and that would be the end of the matter.If he wants his case to be reconsidered, then he can go before the Tribunal and get his caserate of tax is same in every case. In State of Madras v. N. K. Nataraja Mudaliar, Civil Appeal No. 763 of 1967, D/- 18-4-1968 (reported in AIR 1969 SC 147), this Court stated that the essence of Arts. 301 and 303 is to enable the State by a law"to impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in the State are subject, so however, as not to discriminate between goods so imported and goods so manufactured or produced."It was pointed out by this Court that"imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced (sic) (in the State?). Article 304 has no application.Here also the tax is at the same rate and therefore the tax cannot be said to be higher in the case of imported goods. It may be that when the rate is applied the resulting tax is somewhat higher but that does not offend against the equality contemplated by Art. 304. That is the consequence of ad valorem tax being levied at a particular rate. So long as the rate is the same. Art. 304 is satisfied. Even in the case of local manufacturers, if their cost of production varies, the net tax collected will be more or less in some cases but that does not create any inequality because inequality is not the result of the tax but results from the cost of production of the goods or the cost of their importation. This ground, therefore, has also no substance. We do not think it necessary to set down here the provisions of the Haryana Amendment Act because they follow the scheme of the Punjab Amendment Act in substance and what we have said in regard to the Punjab Amending Act applies mutatis mutandis to Haryana Amendment Act also.
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Chetkar Jha Vs. Viswanath Prasad Verma & Ors | for confirmation before the meeting of July 3, 1963, were not only not in accord with that decision but through mistake or inadvertence had recorded something quite different.This was found out when the minutes were placed before the meeting for confirmation. They were, therefore, corrected by scoring out the incorrect portion and substituting it by words incorporating the decision that the Syndicate did not accept the Commissions recommendation. As already stated, this position is borne out by the fact that thoughthere were present in that meeting as many as 16 members who had participated in the previous meeting none of them protested to the alteration in the minutes nor did any one of them say that the decision taken on May 7, 1963 was not one of refusal to accept the Commissions recommendation. Therefore, if the Syndicates decision was not to accept the Commissions recommendation it had to refer under section 26 (4) the matter back to the Commission, the words of sub-s. (4) of section 26 in that regard being mandatory.It seems that the Vice-Chancellor had also understood that the Syndicates decision of May 7, 1963 was not to accept the Commissions recommendation and it was because he had so understood that he got the Registrar on June 11, 1963 to refer the matter back to the Commission. 15. The question then is whether the minutes, as drafted and placed before the meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future disputes as to what had taken place thereat. They are a record of the fact that a meeting was held and of the decision taken thereat. Usually they are written up after the termination of the meeting, often from rough notes taken by the person who is to draft them and then are placed the next meeting for what is generally known as "confirmation",though they are placed for verification and not for confirmation. Indeed, there is no question of any confirmation at the next meeting of a decision already taken, for, a decision once taken does not require any confirmation. Accordingly, when minutes of a meeting are placed before the next meeting the only thing that can be done is to see whether the decision taken at earlier meeting had been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minutes and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting.In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have properly held and convened and all proceedings had there to have been duly had and all appointments of directors, mangers or liquidates are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd ED., Vol. 6, P. 318).This is the position when minutes have been signed by the Chairman. After such signature they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. (cf. Talbot, W. F., Company Meetings, (1951 Ed.), p. 82).This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any pretest against the alteration. The decision relied on by Mr. Jha in In re, Rotherham Alum and Chemical Company, (1883) 25 Ch D 103 is altogether on a different question and cannot be of any assistance. 16. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under section 26 (4) that the matter should be sent back to the Commission for reconsideration, his action in asking the Commission to reconsider clearly fell under S. 26 (4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to following it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under section 26 (4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a rescission of the earlier decision or that such revision or rescission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provision of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9 (4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963. | 0[ds]The Chancellor, therefore, could not, on a wrong interpretation of the Statute, hold that the revised advertisement was a modification of that Statute, that it was, therefore, invalid, and that, therefore, he had the jurisdiction to nullify the Syndicates resolution of July 3, 1963 under Section 9 (4) of the Act. Section 9 (4) authorises the Chancellor to nullify the Syndicates resolution provided only if the Syndicates proceedings were not in conformity with the Act or the StatuteThe Chancellor, therefore, was in error in holding that the revised advertisement required his approval and that in the absence of such approval it was invalid or that the Commissions recommendation and the appointment by the Syndicate based thereon were bad in law on that account13. The second ground on which the Chancellor nullified the appointment was, in our view, equally unsustainable. Under section 26 (2), the Commission had to have the assistance of two experts in the subject for which an appointment was to be made. Clause (iii) of that sub-section provides that such experts "shall be associated" with the Commission, whose duty it shall be to give expert advice to the Commission but who shall have no right to vote. The Chancellor, in our opinion, read more in this sub-section than what it contains or requires. The sub-section merely requires that the two experts shall be "associated" with the Commission before it made its recommendation.It does not say that such association can only be their presence at the time of the interviews. If that were so, it was easy for the Legislature to provide that the expert or experts shall remain present at the time of the interviews. The benefit of experts advice can be had both by the experts remaining present at the time of the interviews and also by their advice communicated to the Commission by post or otherwise.There is nothing in cl. (iii) suggesting that only the first method was the one which was intended.On the contrary, the deliberate use of the word "associated" indicates that the Legislature thought that such advice could be made available by both the methods.The Legislature appears to have left the method of obtaining such advice to the Commission for it is possible that by making their presence at the interviews compulsory, the Commission might in conceivable cases lose the benefit of really competent experts residing at distant places, not to say of those outside the country.The denial of the right to vote to the experts has nothing to do with their having to be present or not.What is sought by the clause is that even if the experts happen to be present they cannot affect the decision of the Commission which is the exclusive decision of that body. The Chancellor clearly misinterpreted cl. (iii) of Section 26 (2) when he thought that the denial of the right to vote to the experts therein indicated that they were required to be present at the time of the interviews. Admittedly, the Commission, as required by cl. (iii), had the benefit of the advice of both the experts. The expiates were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite of one of them not being present at the time of the interviews. The Chancellor was, therefore, in error when he held that the recommendation of the Commission was invalid, and, therefore, the appointment based on it was also invalidThe expiates were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite of one of them not being present at the time of the interviews. The Chancellor was, therefore, in error when he held that the recommendation of the Commission was invalid, and, therefore, the appointment based on it was also invalidAs already stated, this position is borne out by the fact that thoughthere were present in that meeting as many as 16 members who had participated in the previous meeting none of them protested to the alteration in the minutes nor did any one of them say that the decision taken on May 7, 1963 was not one of refusal to accept the Commissions recommendation. Therefore, if the Syndicates decision was not to accept the Commissions recommendation it had to refer under section 26 (4) the matter back to the Commission, the words of sub-s. (4) of section 26 in that regard being mandatory.It seems that the Vice-Chancellor had also understood that the Syndicates decision of May 7, 1963 was not to accept the Commissions recommendation and it was because he had so understood that he got the Registrar on June 11, 1963 to refer the matter back to the CommissionAccordingly, when minutes of a meeting are placed before the next meeting the only thing that can be done is to see whether the decision taken at earlier meeting had been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minutes and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting.In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have properly held and convened and all proceedings had there to have been duly had and all appointments of directors, mangers or liquidates are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd ED., Vol. 6, P. 318).This is the position when minutes have been signed by the Chairman. After such signature they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. (cf. Talbot, W. F., Company Meetings, (1951 Ed.), p. 82).This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any pretest against the alteration. The decision relied on by Mr. Jha inIn re, Rotherham Alum and Chemical Company, (1883) 25 Ch D 103is altogether on a different question and cannot be of any assistance16. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under section 26 (4) that the matter should be sent back to the Commission for reconsideration, his action in asking the Commission to reconsider clearly fell under S. 26 (4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to following it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under section 26 (4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a rescission of the earlier decision or that such revision or rescission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provision of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9 (4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963. | 0 | 4,983 | 1,571 | ### 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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for confirmation before the meeting of July 3, 1963, were not only not in accord with that decision but through mistake or inadvertence had recorded something quite different.This was found out when the minutes were placed before the meeting for confirmation. They were, therefore, corrected by scoring out the incorrect portion and substituting it by words incorporating the decision that the Syndicate did not accept the Commissions recommendation. As already stated, this position is borne out by the fact that thoughthere were present in that meeting as many as 16 members who had participated in the previous meeting none of them protested to the alteration in the minutes nor did any one of them say that the decision taken on May 7, 1963 was not one of refusal to accept the Commissions recommendation. Therefore, if the Syndicates decision was not to accept the Commissions recommendation it had to refer under section 26 (4) the matter back to the Commission, the words of sub-s. (4) of section 26 in that regard being mandatory.It seems that the Vice-Chancellor had also understood that the Syndicates decision of May 7, 1963 was not to accept the Commissions recommendation and it was because he had so understood that he got the Registrar on June 11, 1963 to refer the matter back to the Commission. 15. The question then is whether the minutes, as drafted and placed before the meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future disputes as to what had taken place thereat. They are a record of the fact that a meeting was held and of the decision taken thereat. Usually they are written up after the termination of the meeting, often from rough notes taken by the person who is to draft them and then are placed the next meeting for what is generally known as "confirmation",though they are placed for verification and not for confirmation. Indeed, there is no question of any confirmation at the next meeting of a decision already taken, for, a decision once taken does not require any confirmation. Accordingly, when minutes of a meeting are placed before the next meeting the only thing that can be done is to see whether the decision taken at earlier meeting had been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minutes and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting.In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have properly held and convened and all proceedings had there to have been duly had and all appointments of directors, mangers or liquidates are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd ED., Vol. 6, P. 318).This is the position when minutes have been signed by the Chairman. After such signature they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. (cf. Talbot, W. F., Company Meetings, (1951 Ed.), p. 82).This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any pretest against the alteration. The decision relied on by Mr. Jha in In re, Rotherham Alum and Chemical Company, (1883) 25 Ch D 103 is altogether on a different question and cannot be of any assistance. 16. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under section 26 (4) that the matter should be sent back to the Commission for reconsideration, his action in asking the Commission to reconsider clearly fell under S. 26 (4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to following it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under section 26 (4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a rescission of the earlier decision or that such revision or rescission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provision of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9 (4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963.
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those outside the country.The denial of the right to vote to the experts has nothing to do with their having to be present or not.What is sought by the clause is that even if the experts happen to be present they cannot affect the decision of the Commission which is the exclusive decision of that body. The Chancellor clearly misinterpreted cl. (iii) of Section 26 (2) when he thought that the denial of the right to vote to the experts therein indicated that they were required to be present at the time of the interviews. Admittedly, the Commission, as required by cl. (iii), had the benefit of the advice of both the experts. The expiates were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite of one of them not being present at the time of the interviews. The Chancellor was, therefore, in error when he held that the recommendation of the Commission was invalid, and, therefore, the appointment based on it was also invalidThe expiates were, therefore, "associated" with the Commission and consequently the requirements of that clause were fulfilled, despite of one of them not being present at the time of the interviews. The Chancellor was, therefore, in error when he held that the recommendation of the Commission was invalid, and, therefore, the appointment based on it was also invalidAs already stated, this position is borne out by the fact that thoughthere were present in that meeting as many as 16 members who had participated in the previous meeting none of them protested to the alteration in the minutes nor did any one of them say that the decision taken on May 7, 1963 was not one of refusal to accept the Commissions recommendation. Therefore, if the Syndicates decision was not to accept the Commissions recommendation it had to refer under section 26 (4) the matter back to the Commission, the words of sub-s. (4) of section 26 in that regard being mandatory.It seems that the Vice-Chancellor had also understood that the Syndicates decision of May 7, 1963 was not to accept the Commissions recommendation and it was because he had so understood that he got the Registrar on June 11, 1963 to refer the matter back to the CommissionAccordingly, when minutes of a meeting are placed before the next meeting the only thing that can be done is to see whether the decision taken at earlier meeting had been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minutes and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting.In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have properly held and convened and all proceedings had there to have been duly had and all appointments of directors, mangers or liquidates are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd ED., Vol. 6, P. 318).This is the position when minutes have been signed by the Chairman. After such signature they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. (cf. Talbot, W. F., Company Meetings, (1951 Ed.), p. 82).This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any pretest against the alteration. The decision relied on by Mr. Jha inIn re, Rotherham Alum and Chemical Company, (1883) 25 Ch D 103is altogether on a different question and cannot be of any assistance16. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under section 26 (4) that the matter should be sent back to the Commission for reconsideration, his action in asking the Commission to reconsider clearly fell under S. 26 (4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to following it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under section 26 (4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a rescission of the earlier decision or that such revision or rescission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provision of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9 (4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963.
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Shah Ashu Jaiwant Vs. State Of Maharashtra | for which the. Til seeds were kept was quite immaterial.5. It is true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act). It is enough if an article of adultered food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or of an y rule made there under. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what Was stored or sold was `food. The charge was that the Til seeds sold were unfit for human consumption. This necessarily meant that it was part of the prosecution case that the Til seeds with which we are concerned were meant for human consumption. Recently, this Court has held in Bhagwan Das v. Delhi Administration, (A. 1. R. 1975 S. C. 1309 # 1318) that, although mens rea, in the ordinarily understood sense, may not be needed to be proved in such cases, yet, the purpose for which articles of food covered by the Act are manufactured, distributed or sold was that they `.should reach the consumer to be used as food". Thus, the use` the article sold was not entirely irrelevant. It is more correct to say that it is presumed from the nature of the article itself or the circumstances and manner of offering it for sale. Where circumstances raise a genuine doubt on the question whether what was kept by a seller was "food" at all, this must be resolved by evidence in the case. After all, if what is stored or sold in a shop was neither "food" nor meant to be so used could a person be prosecuted on the ground that he sold it in an adulterated condition ?It was contended on behalf of the appellant that the whole object of the Act was to prevent adulteration of "food" meant for Human consumption. Our attention was invited to a passage from Pyare Lal etc. v, New Delhi Municipal Committee &Anr([1967] 3 S.C.R. 747 @ 755.), where this Court said:``The object of this Act WAS to ensure that food which the public could buy was inter aha prepared, packed, and stored under sanitary condition so as not to be injurious to the health of the people consuming it".Section 2. sub. s.(v) of the Act lays down:"(V)food means any article used as food or drink for human consumption other than drugs and water and includes-(a) any article which ordinarily enters into, or is used in the composition of preparation of human food, and(b) any flavouring matter or condiments";6. Hence, where Section 7 prohibits manufacture, sale or storage or distribution of certain types of food`, it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise this question. It is self-evident that certain articles, such as milk, or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered for sale. What is the position in this respect about black Til seeds with which we are concerned here?7. It is submitted that it is a matter of common knowledge that black Til seeds are not used as food. Even if this be true, it is not so widely known a fact that we could take judicial notice of it. It is also urged that, when the case of the appellant, supported by his cash memo, is that the particular black `Til" seeds where meant to be sold only for pooja for being burnt like incense or thrown into fire in the course of pooja. it cannot be said that this case had been repelled by the mere statement of the Food Inspector that they can be used as food also. Such a statement amounted at least to a partial admission that they arc used for Pooja. Therefore, it is urged, they could have been kept for the purpose of being sold 11 only as a substance used for pooja and not as human food. It is pointed out that there is nothing in evidence on this question, to dislodge the statement of the accused. We find no evidence on record to show the actual manner in which such seeds are used in the course of Pooja. Therefore, the view of the High Court that they could be consumed by people after the performance of pooja rests on bare conjecture. There had to be credible evidence to show that black; til seeds are ordinarily used as food. If that were so, the burden would have shifted on to the shoulders of the accused to prove that what he had stored was not really food meant for human consumption but an article kept for a special use. We are left in doubt on this question on the evidence in this case. We think that the appellant must get the benefit of that doubt.As already indicated above, we are not impressed by the nature of the evidence led by the prosecution. We cannot entirely ignore the fact that the signatures of Tambe are absent on all those documents on which they would have been present if Section 10(7) of the Act had been strictly complied with. We think that it is more likely, for the reasons already given by us, that Tambe was not there ll at all to witness the occurrence. If that be so, the evidence of the prosecuting Food Inspector, who said that Tambe was there, cannot be implicitly relied upon in this case. It is quite unsafe to base the appellants conviction on such shaky foundations.8. | 1[ds]We have considered the question whether it actually corroborates or contradicts the Food Inspectors account. It seems to us that there is such vagueness and apparent contradiction in the pictures conveyed by Tambe and the Food Inspector that Tambes testimony tends to demolish more than to corroborate the version of the Food Inspector on points of fact in issue k indicates that Tambe was probably not present at the time when the seeds were sold by the appellant to the Food Inspector.The Presidency Magistrate, after examining the whole evidence, had concluded that the version of the appellant, that there was a tall; about t he actual purpose for which the Til seeds at his shop were meant, was more probable because it was supported by what the appellant had written on the cash memo when he sold these Til seeds o the Food Inspector. After all, the appellant, who ha d a grain shop, must have known that the Food Inspector could prosecute him if he kept adulterated foodstuffs for sale for human consumption. If, as the analysts report showed, these black Til seeds were full of cocoons, visible to the naked e ye, nobody could be expected to purchase them for consumption as food. The learned Magistrate, after finding that it was more probable that there was talk about the purpose for which the Til seeds were kept in the accuseds shop. despite the Food Inspectors denial about such talk, held that the purpose for which the. Til seeds were kept was quiteis true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 ofthe Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act). It is enough if an article of adultered food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or of an y rule made there under. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what Was stored or sold was `food. The charge was that the Til seeds sold were unfit for human consumption. This necessarily meant that it was part of the prosecution case that the Til seeds with which we are concerned were meant for humanwhere Section 7 prohibits manufacture, sale or storage or distribution of certain types of food`, it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise this question. It is self-evident that certain articles, such as milk, or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered forfind no evidence on record to show the actual manner in which such seeds are used in the course of Pooja. Therefore, the view of the High Court that they could be consumed by people after the performance of pooja rests on bare conjecture. There had to be credible evidence to show that black; til seeds are ordinarily used as food. If that were so, the burden would have shifted on to the shoulders of the accused to prove that what he had stored was not really food meant for human consumption but an article kept for a special use. We are left in doubt on this question on the evidence in this case. We think that the appellant must get the benefit of that doubt.As already indicated above, we are not impressed by the nature of the evidence led by the prosecution. We cannot entirely ignore the fact that the signatures of Tambe are absent on all those documents on which they would have been present if Section 10(7) of the Act had been strictly complied with. We think that it is more likely, for the reasons already given by us, that Tambe was not there ll at all to witness the occurrence. If that be so, the evidence of the prosecuting Food Inspector, who said that Tambe was there, cannot be implicitly relied upon in this case. It is quite unsafe to base the appellants conviction on such shaky foundations. | 1 | 2,270 | 805 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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for which the. Til seeds were kept was quite immaterial.5. It is true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act). It is enough if an article of adultered food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or of an y rule made there under. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what Was stored or sold was `food. The charge was that the Til seeds sold were unfit for human consumption. This necessarily meant that it was part of the prosecution case that the Til seeds with which we are concerned were meant for human consumption. Recently, this Court has held in Bhagwan Das v. Delhi Administration, (A. 1. R. 1975 S. C. 1309 # 1318) that, although mens rea, in the ordinarily understood sense, may not be needed to be proved in such cases, yet, the purpose for which articles of food covered by the Act are manufactured, distributed or sold was that they `.should reach the consumer to be used as food". Thus, the use` the article sold was not entirely irrelevant. It is more correct to say that it is presumed from the nature of the article itself or the circumstances and manner of offering it for sale. Where circumstances raise a genuine doubt on the question whether what was kept by a seller was "food" at all, this must be resolved by evidence in the case. After all, if what is stored or sold in a shop was neither "food" nor meant to be so used could a person be prosecuted on the ground that he sold it in an adulterated condition ?It was contended on behalf of the appellant that the whole object of the Act was to prevent adulteration of "food" meant for Human consumption. Our attention was invited to a passage from Pyare Lal etc. v, New Delhi Municipal Committee &Anr([1967] 3 S.C.R. 747 @ 755.), where this Court said:``The object of this Act WAS to ensure that food which the public could buy was inter aha prepared, packed, and stored under sanitary condition so as not to be injurious to the health of the people consuming it".Section 2. sub. s.(v) of the Act lays down:"(V)food means any article used as food or drink for human consumption other than drugs and water and includes-(a) any article which ordinarily enters into, or is used in the composition of preparation of human food, and(b) any flavouring matter or condiments";6. Hence, where Section 7 prohibits manufacture, sale or storage or distribution of certain types of food`, it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise this question. It is self-evident that certain articles, such as milk, or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered for sale. What is the position in this respect about black Til seeds with which we are concerned here?7. It is submitted that it is a matter of common knowledge that black Til seeds are not used as food. Even if this be true, it is not so widely known a fact that we could take judicial notice of it. It is also urged that, when the case of the appellant, supported by his cash memo, is that the particular black `Til" seeds where meant to be sold only for pooja for being burnt like incense or thrown into fire in the course of pooja. it cannot be said that this case had been repelled by the mere statement of the Food Inspector that they can be used as food also. Such a statement amounted at least to a partial admission that they arc used for Pooja. Therefore, it is urged, they could have been kept for the purpose of being sold 11 only as a substance used for pooja and not as human food. It is pointed out that there is nothing in evidence on this question, to dislodge the statement of the accused. We find no evidence on record to show the actual manner in which such seeds are used in the course of Pooja. Therefore, the view of the High Court that they could be consumed by people after the performance of pooja rests on bare conjecture. There had to be credible evidence to show that black; til seeds are ordinarily used as food. If that were so, the burden would have shifted on to the shoulders of the accused to prove that what he had stored was not really food meant for human consumption but an article kept for a special use. We are left in doubt on this question on the evidence in this case. We think that the appellant must get the benefit of that doubt.As already indicated above, we are not impressed by the nature of the evidence led by the prosecution. We cannot entirely ignore the fact that the signatures of Tambe are absent on all those documents on which they would have been present if Section 10(7) of the Act had been strictly complied with. We think that it is more likely, for the reasons already given by us, that Tambe was not there ll at all to witness the occurrence. If that be so, the evidence of the prosecuting Food Inspector, who said that Tambe was there, cannot be implicitly relied upon in this case. It is quite unsafe to base the appellants conviction on such shaky foundations.8.
### Response:
1
### Explanation:
We have considered the question whether it actually corroborates or contradicts the Food Inspectors account. It seems to us that there is such vagueness and apparent contradiction in the pictures conveyed by Tambe and the Food Inspector that Tambes testimony tends to demolish more than to corroborate the version of the Food Inspector on points of fact in issue k indicates that Tambe was probably not present at the time when the seeds were sold by the appellant to the Food Inspector.The Presidency Magistrate, after examining the whole evidence, had concluded that the version of the appellant, that there was a tall; about t he actual purpose for which the Til seeds at his shop were meant, was more probable because it was supported by what the appellant had written on the cash memo when he sold these Til seeds o the Food Inspector. After all, the appellant, who ha d a grain shop, must have known that the Food Inspector could prosecute him if he kept adulterated foodstuffs for sale for human consumption. If, as the analysts report showed, these black Til seeds were full of cocoons, visible to the naked e ye, nobody could be expected to purchase them for consumption as food. The learned Magistrate, after finding that it was more probable that there was talk about the purpose for which the Til seeds were kept in the accuseds shop. despite the Food Inspectors denial about such talk, held that the purpose for which the. Til seeds were kept was quiteis true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 ofthe Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act). It is enough if an article of adultered food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or of an y rule made there under. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what Was stored or sold was `food. The charge was that the Til seeds sold were unfit for human consumption. This necessarily meant that it was part of the prosecution case that the Til seeds with which we are concerned were meant for humanwhere Section 7 prohibits manufacture, sale or storage or distribution of certain types of food`, it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise this question. It is self-evident that certain articles, such as milk, or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered forfind no evidence on record to show the actual manner in which such seeds are used in the course of Pooja. Therefore, the view of the High Court that they could be consumed by people after the performance of pooja rests on bare conjecture. There had to be credible evidence to show that black; til seeds are ordinarily used as food. If that were so, the burden would have shifted on to the shoulders of the accused to prove that what he had stored was not really food meant for human consumption but an article kept for a special use. We are left in doubt on this question on the evidence in this case. We think that the appellant must get the benefit of that doubt.As already indicated above, we are not impressed by the nature of the evidence led by the prosecution. We cannot entirely ignore the fact that the signatures of Tambe are absent on all those documents on which they would have been present if Section 10(7) of the Act had been strictly complied with. We think that it is more likely, for the reasons already given by us, that Tambe was not there ll at all to witness the occurrence. If that be so, the evidence of the prosecuting Food Inspector, who said that Tambe was there, cannot be implicitly relied upon in this case. It is quite unsafe to base the appellants conviction on such shaky foundations.
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Unitech Ltd. Vs. Union Of India | the apparent effective consideration and the market value is more than 15%, the Appropriate Authority cannot assume jurisdiction under section 269-UD of the Act. The same does not mean that the mere fact that such difference is more than 15% will, automatically, lead to the conclusion that there has been undervaluation of property with the motive of evading tax. In Vimal Agarwal case (supra), this Court has reiterated that right of pre-emptive purchase under section 269UD is not a right of pre-emption simpliciter but is a right which can be exercised only in the cases where there is significant undervaluation in agreement of sale with a view to evade tax. The onus of establishing that undervaluation is with a view to evade tax is on the Revenue. No such finding is to be found in the impugned order?. It is not possible to agree with this view in its entirety. Undoubtedly one of the objects of the provision is to prevent evasion of taxes by showing an undervaluation which is more than 15% of the true value of the property and which in turn carries an implication that some portion of the value is not shown in the agreement or the deed but passes by way of unaccounted money. But it is not possible to say that it must be alleged in the show cause notice or a finding must be rendered in the order that there is evasion of taxes as a sine qua non for its validity. Nor is it possible to hold that the onus of establishing undervaluation with a view to evade tax is on the revenue. The true position seems to be that a significant undervaluation, greater than 15% below the fair market value raises a rebuttable presumption that there is an attempt to evade taxes. In C.B. Gautam?s case (1993) 1 SCC 78 )this Court observed that an allegation of such undervaluation of more than 15% raises a rebuttable presumption of evasion of taxes which renders an opportunity to show cause necessary. Therefore, such an opportunity must be read into the provisions of Chapter XXC. This Court observed in C.B. Gautam?s case (supra), as follows: ?As we have already pointed out the provisions of Chapter XX-C can be resorted to only where there is a significant undervaluation of property to the extent of 15 per cent or more in the agreement of sale, as evidenced by the apparent consideration being the lower than the fair market value by 15 per cent or more. We have further pointed out that although a presumption of an attempt to evade tax may be raised by the appropriate authority concerned in case of the aforesaid circumstances being established, but such a presumption is rebuttable and this would necessarily imply that the parties concerned must have an opportunity to show cause as to why such a presumption should not be drawn. Moreover, in a given transaction of an agreement to sell there might be several bona fide considerations which might induce a seller to sell his immovable property at less than what might be considered to be the fair market value. For example: he might be in immediate need of money and unable to wait till a buyer is found who is willing to pay the fair market value for the property. There might be some dispute as to the title of the immovable property as a result of which it might have to be sold at a price lower than the fair market value or a subsisting lease in favour of the intending purchaser. There might similarly be other genuine reasons which might have led the seller to agree to sell the property to a particular purchaser at less than the market value even in cases where the purchaser might not be his relative. Unless an intending purchaser or intending seller is given an opportunity to show cause against the proposed order for compulsory purchase, he would not be in a position to rebut the presumption of tax evasion and to give an interpretation to the provisions which would lead to such a result would be utterly unwarranted. The very fact that an imputation of tax evasion arises where an order for compulsory purchase is made and such an imputation casts a slur on the parties to the agreement to sell lead to the conclusion that before such an imputation can be made against the parties concerned, they must be given an opportunity to show cause that the undervaluation in the agreement for sale was not with a view to evade tax. Although Chapter XX-C does not contain any express provision for the affected parties being given an opportunity to be heard before an order for purchase is made under Section 269-UD, not to read the requirement of such an opportunity would be to give too literal and strict an interpretation to the provisions of Chapter XX-C and in the words of Judge Learned Hand of the United States of America ?to make a fortress out of the dictionary?. Again, there is no express provision in Chapter XX-C barring the giving of a show-cause notice or reasonable opportunity to show cause nor is there anything in the language of Chapter XX-C which could lead to such an implication. The observance of principles of natural justice is the pragmatic requirement of fair play in action. In our view, therefore, the requirement of an opportunity to show cause being given before an order for purchase by the Central Government is made by an appropriate authority under Section 269-UD must be read into the provisions of Chapter XX-C?. 13. The High Court has failed to render a finding on the relevance of comparable sale instances, particularly, why a sale instance in an adjoining locality has been considered to be valid instead of a sale instance in the same locality. The other aspects of the impugned order of the appropriate authority in the earlier part of judgment seems to have been missed. | 1[ds]It is not possible to agree with this view in its entirety. Undoubtedly one of the objects of the provision is to prevent evasion of taxes by showing an undervaluation which is more than 15% of the true value of the property and which in turn carries an implication that some portion of the value is not shown in the agreement or the deed but passes by way of unaccounted money. But it is not possible to say that it must be alleged in the show cause notice or a finding must be rendered in the order that there is evasion of taxes as a sine qua non for its validity. Nor is it possible to hold that the onus of establishing undervaluation with a view to evade tax is on the revenue. The true position seems to be that a significant undervaluation, greater than 15% below the fair market value raises a rebuttable presumption that there is an attempt to evade taxes. In C.B. Gautam?s case (1993) 1 SCC 78 )this Court observed that an allegation of such undervaluation of more than 15% raises a rebuttable presumption of evasion of taxes which renders an opportunity to show cause necessary. Therefore, such an opportunity must be read into the provisions of Chapter XXC. This Court observed in C.B. Gautam?s case (supra), as follows:13. The High Court has failed to render a finding on the relevance of comparable sale instances, particularly, why a sale instance in an adjoining locality has been considered to be valid instead of a sale instance in the same locality. The other aspects of the impugned order of the appropriate authority in the earlier part of judgment seems to have been missed | 1 | 4,785 | 317 | ### Instruction:
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the apparent effective consideration and the market value is more than 15%, the Appropriate Authority cannot assume jurisdiction under section 269-UD of the Act. The same does not mean that the mere fact that such difference is more than 15% will, automatically, lead to the conclusion that there has been undervaluation of property with the motive of evading tax. In Vimal Agarwal case (supra), this Court has reiterated that right of pre-emptive purchase under section 269UD is not a right of pre-emption simpliciter but is a right which can be exercised only in the cases where there is significant undervaluation in agreement of sale with a view to evade tax. The onus of establishing that undervaluation is with a view to evade tax is on the Revenue. No such finding is to be found in the impugned order?. It is not possible to agree with this view in its entirety. Undoubtedly one of the objects of the provision is to prevent evasion of taxes by showing an undervaluation which is more than 15% of the true value of the property and which in turn carries an implication that some portion of the value is not shown in the agreement or the deed but passes by way of unaccounted money. But it is not possible to say that it must be alleged in the show cause notice or a finding must be rendered in the order that there is evasion of taxes as a sine qua non for its validity. Nor is it possible to hold that the onus of establishing undervaluation with a view to evade tax is on the revenue. The true position seems to be that a significant undervaluation, greater than 15% below the fair market value raises a rebuttable presumption that there is an attempt to evade taxes. In C.B. Gautam?s case (1993) 1 SCC 78 )this Court observed that an allegation of such undervaluation of more than 15% raises a rebuttable presumption of evasion of taxes which renders an opportunity to show cause necessary. Therefore, such an opportunity must be read into the provisions of Chapter XXC. This Court observed in C.B. Gautam?s case (supra), as follows: ?As we have already pointed out the provisions of Chapter XX-C can be resorted to only where there is a significant undervaluation of property to the extent of 15 per cent or more in the agreement of sale, as evidenced by the apparent consideration being the lower than the fair market value by 15 per cent or more. We have further pointed out that although a presumption of an attempt to evade tax may be raised by the appropriate authority concerned in case of the aforesaid circumstances being established, but such a presumption is rebuttable and this would necessarily imply that the parties concerned must have an opportunity to show cause as to why such a presumption should not be drawn. Moreover, in a given transaction of an agreement to sell there might be several bona fide considerations which might induce a seller to sell his immovable property at less than what might be considered to be the fair market value. For example: he might be in immediate need of money and unable to wait till a buyer is found who is willing to pay the fair market value for the property. There might be some dispute as to the title of the immovable property as a result of which it might have to be sold at a price lower than the fair market value or a subsisting lease in favour of the intending purchaser. There might similarly be other genuine reasons which might have led the seller to agree to sell the property to a particular purchaser at less than the market value even in cases where the purchaser might not be his relative. Unless an intending purchaser or intending seller is given an opportunity to show cause against the proposed order for compulsory purchase, he would not be in a position to rebut the presumption of tax evasion and to give an interpretation to the provisions which would lead to such a result would be utterly unwarranted. The very fact that an imputation of tax evasion arises where an order for compulsory purchase is made and such an imputation casts a slur on the parties to the agreement to sell lead to the conclusion that before such an imputation can be made against the parties concerned, they must be given an opportunity to show cause that the undervaluation in the agreement for sale was not with a view to evade tax. Although Chapter XX-C does not contain any express provision for the affected parties being given an opportunity to be heard before an order for purchase is made under Section 269-UD, not to read the requirement of such an opportunity would be to give too literal and strict an interpretation to the provisions of Chapter XX-C and in the words of Judge Learned Hand of the United States of America ?to make a fortress out of the dictionary?. Again, there is no express provision in Chapter XX-C barring the giving of a show-cause notice or reasonable opportunity to show cause nor is there anything in the language of Chapter XX-C which could lead to such an implication. The observance of principles of natural justice is the pragmatic requirement of fair play in action. In our view, therefore, the requirement of an opportunity to show cause being given before an order for purchase by the Central Government is made by an appropriate authority under Section 269-UD must be read into the provisions of Chapter XX-C?. 13. The High Court has failed to render a finding on the relevance of comparable sale instances, particularly, why a sale instance in an adjoining locality has been considered to be valid instead of a sale instance in the same locality. The other aspects of the impugned order of the appropriate authority in the earlier part of judgment seems to have been missed.
### Response:
1
### Explanation:
It is not possible to agree with this view in its entirety. Undoubtedly one of the objects of the provision is to prevent evasion of taxes by showing an undervaluation which is more than 15% of the true value of the property and which in turn carries an implication that some portion of the value is not shown in the agreement or the deed but passes by way of unaccounted money. But it is not possible to say that it must be alleged in the show cause notice or a finding must be rendered in the order that there is evasion of taxes as a sine qua non for its validity. Nor is it possible to hold that the onus of establishing undervaluation with a view to evade tax is on the revenue. The true position seems to be that a significant undervaluation, greater than 15% below the fair market value raises a rebuttable presumption that there is an attempt to evade taxes. In C.B. Gautam?s case (1993) 1 SCC 78 )this Court observed that an allegation of such undervaluation of more than 15% raises a rebuttable presumption of evasion of taxes which renders an opportunity to show cause necessary. Therefore, such an opportunity must be read into the provisions of Chapter XXC. This Court observed in C.B. Gautam?s case (supra), as follows:13. The High Court has failed to render a finding on the relevance of comparable sale instances, particularly, why a sale instance in an adjoining locality has been considered to be valid instead of a sale instance in the same locality. The other aspects of the impugned order of the appropriate authority in the earlier part of judgment seems to have been missed
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BALKRISHNA DATTATRAYA GALANDE Vs. BALKRISHNA RAMBHAROSE GUPTA | out by the trial court, the first respondent-plaintiff admitted that for running the business of hotel and Pan shop, two licences are required. In his evidence, the first respondent- plaintiff admitted that he was not holding any licence issued by the Pune Municipal Corporation for carrying on business. The trial court also pointed out that the first respondent has admitted that three-phase electricity connection is required for carrying out the business of fabrication which he was allegedly carrying on in the suit premises. But in his cross- examination, the first respondent admitted that he does not have such three-phase electricity connection at the suit premises. In the absence of requisite electricity connection, the contention of the first respondent that he has been carrying on the business of fabrication at the suit premises does not appear to be probable. In the absence of licence and the requisite electricity connection, the trial court rightly rejected the plea of the first respondent that he has been carrying on business of hotel, Pan shop and fabrication work at the suit premises. 13. Contention of the appellant-defendant that after 1991, the first respondent-plaintiff was not in possession of the suit property is corroborated by the evidence of Sandeep Wagh. In his evidence, Sandeep Wagh stated that he knows the first respondent-plaintiff and appellant-defendant and that the first respondent-plaintiff had met with an accident and thereafter he was not carrying on any business at the suit premises. Based upon the evidence of appellant-defendant and Sandeep Wagh, the trial court has arrived at conclusion that in all probability, the first respondent-plaintiff must have vacated the suit premises in the year 1991. In our considered view, the First Appellate Court ought not to have interfered with the findings of fact recorded by the trial court on the basis of Purshis Ex.-41. 14. The conclusion of the trial court that the first respondent-plaintiff vacated the suit property since the year 1991 is fortified by yet another circumstance viz., non- payment of rent by the respondent-plaintiff. Admittedly, ever since withdrawal of earlier suit RCS No.1004/1988, the first respondent-plaintiff has not paid any rent from the year 1991. Be it noted, that the appellant-defendant had also not initiated any proceedings claiming rent or arrears of rent from the first respondent-plaintiff. After filing of the suit in 2004, the first respondent-plaintiff has sent a cheque dated 14.05.2005 for Rs.10,395/- towards payment of rent for 189 months thereby admitting that he has not paid the rent for more than fifteen years. The trial court also observed that the first respondent-plaintiff has suppressed the material fact that he has not paid the rent from 1991. The trial court observed that the first respondent-plaintiff has not come to the court with clean hands and that he cannot sustain his claim for the equitable relief of permanent injunction. 15. The First Appellate Court did not keep in view that the first respondent-plaintiff has not shown that he has paid any rent after 1991 and that without paying rent, he cannot have any legitimate right to be in possession of the suit premises. The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property. Having not paid rent for more than fifteen years, it cannot be said that possession of the first respondent-plaintiff can be said to lawful possession entitling him to grant of permanent injunction. 16. The appellant-defendant decided to develop his property through second respondent-builder and in that regard, a public notice was given calling for objections from persons, whether any person having any interest in the property. At that time, the first respondent-plaintiff issued notice dated 13.04.2000 through his advocate claiming that he is a tenant of the portion of the land measuring 1000 sq. ft. since last twenty two years. In the earlier suit RCS No.1004/1988, the tenanted premises was described as only one room. In its order in the interlocutory application (Ex.-5) dated 17.10.2005, the trial court has pointed out that the total area of the premises described in all the schedule is 356 sq. ft. It is not known how the first respondent-plaintiff issued legal notice claiming tenancy right over thousand square feet. As pointed out by the trial court, objection of the first respondent-plaintiff was rejected by the Corporation and accordingly, layout of the proposed building on the said land was sanctioned by the Corporation (Ex.-42/4). This conduct of the first respondent-plaintiff also disentitles him from claiming the equitable relief of permanent injunction and these aspects were not properly appreciated by the First Appellate Court. 17. As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction. 18. Upon appreciation of the oral and documentary evidence, the trial court rightly held that the first respondent- plaintiff failed to prove his actual and physical possession over the suit property on the date of the suit. When the finding of the trial court was based on oral and documentary evidence, the First Appellate Court and the High Court were not right in setting aside the judgment of the trial court by drawing inference of possession from Purshis Ex.-41. In our considered view, the First Appellate Court and the High Court fell in error by presuming that the first respondent-plaintiff was in possession by merely relying upon the prior suit filed by the appellant-defendant for possession and Purshis Ex.-41. The impugned order of the High Court affirming the findings of the First Appellate Court is not sustainable and is liable to be set aside. | 1[ds]As observed by the trial court, the first respondent-plaintiff has not brought on record any document to show that the court has passed any order permitting him to carry repairs after the date of inspection by the Commissioner and having regard to the condition of the building, it was impossible for the first respondent-plaintiff to carry business in the suit premises.As rightly pointed out by the trial court on the date of inspection by Commissioner, the premises was not fit for conducting the hotel business. The trial court rightly rejected the contention of the first respondent-plaintiff that he has carried out repairs after the inspection by the Commissioner observing that the first respondent-plaintiff has failed to produce documents such as the order of the court permitting him to carry repairs, receipts of material purchase and labour charges paid etc. From the photographs filed by the first respondent-plaintiff, the trial court rightly concluded that the condition of the said premises was not at all fit for any purpose.The first respondent-plaintiff has filed the suit under Section 38 of the Specific Relief Act seeking permanent injunction on the ground that he is in actual possession of the suit property. Grant of permanent injunction results in restraining the defendant?s legitimate right to use the property as his own property. Under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit. The earlier suit RCS No.1004/1988 was filed in the year 1988 and it proceeded till 1991. In the present case, the first respondent-plaintiff has to prove his actual possession on the date of filing of suit. The First Appellate Court concluded that the appellant-defendant had failed to prove that the plaintiff has vacated the premises in 1991 after withdrawal of earlier suit RCS No.1004/1988. Contention of the appellant is that a settlement was arrived at between the parties and pursuant to that settlement, the plaintiff has vacated the premises in 1991. This has not been rebutted by the first respondent- plaintiff by adducing substantive evidence. The possession of the plaintiff cannot be based upon the inferences; drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction.According to the first respondent-plaintiff, he was conducting business of hotel and Pan shop in the suit premises and also carrying on fabrication work. As pointed out by the trial court, the first respondent-plaintiff admitted that for running the business of hotel and Pan shop, two licences are required. In his evidence, the first respondent- plaintiff admitted that he was not holding any licence issued by the Pune Municipal Corporation for carrying on business. The trial court also pointed out that the first respondent has admitted that three-phase electricity connection is required for carrying out the business of fabrication which he was allegedly carrying on in the suit premises. But in his cross- examination, the first respondent admitted that he does not have such three-phase electricity connection at the suit premises. In the absence of requisite electricity connection, the contention of the first respondent that he has been carrying on the business of fabrication at the suit premises does not appear to be probable. In the absence of licence and the requisite electricity connection, the trial court rightly rejected the plea of the first respondent that he has been carrying on business of hotel, Pan shop and fabrication work at the suit premises.Contention of the appellant-defendant that after 1991, the first respondent-plaintiff was not in possession of the suit property is corroborated by the evidence of Sandeep Wagh. In his evidence, Sandeep Wagh stated that he knows the first respondent-plaintiff and appellant-defendant and that the first respondent-plaintiff had met with an accident and thereafter he was not carrying on any business at the suit premises. Based upon the evidence of appellant-defendant and Sandeep Wagh, the trial court has arrived at conclusion that in all probability, the first respondent-plaintiff must have vacated the suit premises in the year 1991. In our considered view, the First Appellate Court ought not to have interfered with the findings of fact recorded by the trial court on the basis of Purshis Ex.-41.The conclusion of the trial court that the first respondent-plaintiff vacated the suit property since the year 1991 is fortified by yet another circumstance viz., non- payment of rent by the respondent-plaintiff. Admittedly, ever since withdrawal of earlier suit RCS No.1004/1988, the first respondent-plaintiff has not paid any rent from the year 1991. Be it noted, that the appellant-defendant had also not initiated any proceedings claiming rent or arrears of rent from the first respondent-plaintiff. After filing of the suit in 2004, the first respondent-plaintiff has sent a chequefor Rs.10,395/- towards payment of rent for 189 months thereby admitting that he has not paid the rent for more than fifteen years. The trial court also observed that the first respondent-plaintiff has suppressed the material fact that he has not paid the rent from 1991. The trial court observed that the first respondent-plaintiff has not come to the court with clean hands and that he cannot sustain his claim for the equitable relief of permanent injunction.The First Appellate Court did not keep in view that the first respondent-plaintiff has not shown that he has paid any rent after 1991 and that without paying rent, he cannot have any legitimate right to be in possession of the suit premises. The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property. Having not paid rent for more than fifteen years, it cannot be said that possession of the first respondent-plaintiff can be said to lawful possession entitling him to grant of permanent injunction.The appellant-defendant decided to develop his property through second respondent-builder and in that regard, a public notice was given calling for objections from persons, whether any person having any interest in the property. At that time, the first respondent-plaintiff issued noticethrough his advocate claiming that he is a tenant of the portion of the land measuring 1000 sq. ft. since last twenty two years. In the earlier suit RCS No.1004/1988, the tenanted premises was described as only one room. In its order in the interlocutory application (Ex.-5) dated 17.10.2005, the trial court has pointed out that the total area of the premises described in all the schedule is 356 sq. ft. It is not known how the first respondent-plaintiff issued legal notice claiming tenancy right over thousand square feet. As pointed out by the trial court, objection of the first respondent-plaintiff was rejected by the Corporation and accordingly, layout of the proposed building on the said land was sanctioned by the Corporation (Ex.-42/4). This conduct of the first respondent-plaintiff also disentitles him from claiming the equitable relief of permanent injunction and these aspects were not properly appreciated by the First Appellate Court.As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.Upon appreciation of the oral and documentary evidence, the trial court rightly held that the first respondent- plaintiff failed to prove his actual and physical possession over the suit property on the date of the suit. When the finding of the trial court was based on oral and documentary evidence, the First Appellate Court and the High Court were not right in setting aside the judgment of the trial court by drawing inference of possession from Purshis Ex.-41. In our considered view, the First Appellate Court and the High Court fell in error by presuming that the first respondent-plaintiff was in possession by merely relying upon the prior suit filed by the appellant-defendant for possession and Purshis Ex.-41. The impugned order of the High Court affirming the findings of the First Appellate Court is not sustainable and is liable to be set aside. | 1 | 2,869 | 1,497 | ### Instruction:
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out by the trial court, the first respondent-plaintiff admitted that for running the business of hotel and Pan shop, two licences are required. In his evidence, the first respondent- plaintiff admitted that he was not holding any licence issued by the Pune Municipal Corporation for carrying on business. The trial court also pointed out that the first respondent has admitted that three-phase electricity connection is required for carrying out the business of fabrication which he was allegedly carrying on in the suit premises. But in his cross- examination, the first respondent admitted that he does not have such three-phase electricity connection at the suit premises. In the absence of requisite electricity connection, the contention of the first respondent that he has been carrying on the business of fabrication at the suit premises does not appear to be probable. In the absence of licence and the requisite electricity connection, the trial court rightly rejected the plea of the first respondent that he has been carrying on business of hotel, Pan shop and fabrication work at the suit premises. 13. Contention of the appellant-defendant that after 1991, the first respondent-plaintiff was not in possession of the suit property is corroborated by the evidence of Sandeep Wagh. In his evidence, Sandeep Wagh stated that he knows the first respondent-plaintiff and appellant-defendant and that the first respondent-plaintiff had met with an accident and thereafter he was not carrying on any business at the suit premises. Based upon the evidence of appellant-defendant and Sandeep Wagh, the trial court has arrived at conclusion that in all probability, the first respondent-plaintiff must have vacated the suit premises in the year 1991. In our considered view, the First Appellate Court ought not to have interfered with the findings of fact recorded by the trial court on the basis of Purshis Ex.-41. 14. The conclusion of the trial court that the first respondent-plaintiff vacated the suit property since the year 1991 is fortified by yet another circumstance viz., non- payment of rent by the respondent-plaintiff. Admittedly, ever since withdrawal of earlier suit RCS No.1004/1988, the first respondent-plaintiff has not paid any rent from the year 1991. Be it noted, that the appellant-defendant had also not initiated any proceedings claiming rent or arrears of rent from the first respondent-plaintiff. After filing of the suit in 2004, the first respondent-plaintiff has sent a cheque dated 14.05.2005 for Rs.10,395/- towards payment of rent for 189 months thereby admitting that he has not paid the rent for more than fifteen years. The trial court also observed that the first respondent-plaintiff has suppressed the material fact that he has not paid the rent from 1991. The trial court observed that the first respondent-plaintiff has not come to the court with clean hands and that he cannot sustain his claim for the equitable relief of permanent injunction. 15. The First Appellate Court did not keep in view that the first respondent-plaintiff has not shown that he has paid any rent after 1991 and that without paying rent, he cannot have any legitimate right to be in possession of the suit premises. The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property. Having not paid rent for more than fifteen years, it cannot be said that possession of the first respondent-plaintiff can be said to lawful possession entitling him to grant of permanent injunction. 16. The appellant-defendant decided to develop his property through second respondent-builder and in that regard, a public notice was given calling for objections from persons, whether any person having any interest in the property. At that time, the first respondent-plaintiff issued notice dated 13.04.2000 through his advocate claiming that he is a tenant of the portion of the land measuring 1000 sq. ft. since last twenty two years. In the earlier suit RCS No.1004/1988, the tenanted premises was described as only one room. In its order in the interlocutory application (Ex.-5) dated 17.10.2005, the trial court has pointed out that the total area of the premises described in all the schedule is 356 sq. ft. It is not known how the first respondent-plaintiff issued legal notice claiming tenancy right over thousand square feet. As pointed out by the trial court, objection of the first respondent-plaintiff was rejected by the Corporation and accordingly, layout of the proposed building on the said land was sanctioned by the Corporation (Ex.-42/4). This conduct of the first respondent-plaintiff also disentitles him from claiming the equitable relief of permanent injunction and these aspects were not properly appreciated by the First Appellate Court. 17. As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction. 18. Upon appreciation of the oral and documentary evidence, the trial court rightly held that the first respondent- plaintiff failed to prove his actual and physical possession over the suit property on the date of the suit. When the finding of the trial court was based on oral and documentary evidence, the First Appellate Court and the High Court were not right in setting aside the judgment of the trial court by drawing inference of possession from Purshis Ex.-41. In our considered view, the First Appellate Court and the High Court fell in error by presuming that the first respondent-plaintiff was in possession by merely relying upon the prior suit filed by the appellant-defendant for possession and Purshis Ex.-41. The impugned order of the High Court affirming the findings of the First Appellate Court is not sustainable and is liable to be set aside.
### Response:
1
### Explanation:
business of hotel and Pan shop in the suit premises and also carrying on fabrication work. As pointed out by the trial court, the first respondent-plaintiff admitted that for running the business of hotel and Pan shop, two licences are required. In his evidence, the first respondent- plaintiff admitted that he was not holding any licence issued by the Pune Municipal Corporation for carrying on business. The trial court also pointed out that the first respondent has admitted that three-phase electricity connection is required for carrying out the business of fabrication which he was allegedly carrying on in the suit premises. But in his cross- examination, the first respondent admitted that he does not have such three-phase electricity connection at the suit premises. In the absence of requisite electricity connection, the contention of the first respondent that he has been carrying on the business of fabrication at the suit premises does not appear to be probable. In the absence of licence and the requisite electricity connection, the trial court rightly rejected the plea of the first respondent that he has been carrying on business of hotel, Pan shop and fabrication work at the suit premises.Contention of the appellant-defendant that after 1991, the first respondent-plaintiff was not in possession of the suit property is corroborated by the evidence of Sandeep Wagh. In his evidence, Sandeep Wagh stated that he knows the first respondent-plaintiff and appellant-defendant and that the first respondent-plaintiff had met with an accident and thereafter he was not carrying on any business at the suit premises. Based upon the evidence of appellant-defendant and Sandeep Wagh, the trial court has arrived at conclusion that in all probability, the first respondent-plaintiff must have vacated the suit premises in the year 1991. In our considered view, the First Appellate Court ought not to have interfered with the findings of fact recorded by the trial court on the basis of Purshis Ex.-41.The conclusion of the trial court that the first respondent-plaintiff vacated the suit property since the year 1991 is fortified by yet another circumstance viz., non- payment of rent by the respondent-plaintiff. Admittedly, ever since withdrawal of earlier suit RCS No.1004/1988, the first respondent-plaintiff has not paid any rent from the year 1991. Be it noted, that the appellant-defendant had also not initiated any proceedings claiming rent or arrears of rent from the first respondent-plaintiff. After filing of the suit in 2004, the first respondent-plaintiff has sent a chequefor Rs.10,395/- towards payment of rent for 189 months thereby admitting that he has not paid the rent for more than fifteen years. The trial court also observed that the first respondent-plaintiff has suppressed the material fact that he has not paid the rent from 1991. The trial court observed that the first respondent-plaintiff has not come to the court with clean hands and that he cannot sustain his claim for the equitable relief of permanent injunction.The First Appellate Court did not keep in view that the first respondent-plaintiff has not shown that he has paid any rent after 1991 and that without paying rent, he cannot have any legitimate right to be in possession of the suit premises. The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property. Having not paid rent for more than fifteen years, it cannot be said that possession of the first respondent-plaintiff can be said to lawful possession entitling him to grant of permanent injunction.The appellant-defendant decided to develop his property through second respondent-builder and in that regard, a public notice was given calling for objections from persons, whether any person having any interest in the property. At that time, the first respondent-plaintiff issued noticethrough his advocate claiming that he is a tenant of the portion of the land measuring 1000 sq. ft. since last twenty two years. In the earlier suit RCS No.1004/1988, the tenanted premises was described as only one room. In its order in the interlocutory application (Ex.-5) dated 17.10.2005, the trial court has pointed out that the total area of the premises described in all the schedule is 356 sq. ft. It is not known how the first respondent-plaintiff issued legal notice claiming tenancy right over thousand square feet. As pointed out by the trial court, objection of the first respondent-plaintiff was rejected by the Corporation and accordingly, layout of the proposed building on the said land was sanctioned by the Corporation (Ex.-42/4). This conduct of the first respondent-plaintiff also disentitles him from claiming the equitable relief of permanent injunction and these aspects were not properly appreciated by the First Appellate Court.As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.Upon appreciation of the oral and documentary evidence, the trial court rightly held that the first respondent- plaintiff failed to prove his actual and physical possession over the suit property on the date of the suit. When the finding of the trial court was based on oral and documentary evidence, the First Appellate Court and the High Court were not right in setting aside the judgment of the trial court by drawing inference of possession from Purshis Ex.-41. In our considered view, the First Appellate Court and the High Court fell in error by presuming that the first respondent-plaintiff was in possession by merely relying upon the prior suit filed by the appellant-defendant for possession and Purshis Ex.-41. The impugned order of the High Court affirming the findings of the First Appellate Court is not sustainable and is liable to be set aside.
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M/s. Hind Paints & Chemicals Vs. M/s. Accurate Transformers Ltd | 1. Leave granted. 2. In a Winding Up proceeding, it was alleged that the respondent company was required to pay an amount of Rs.3,17,352/- to the appellant. It appears that on being provisionally appointed the Official Liquidator went to the premises of the respondent-company to take possession thereof. Thereafter, the respondent filed an application before the Company Judge for recalling the order of appointment of the Official Liquidator on the ground that the respondent-company had already paid the principal amount and that only the question of interest remains to be decided. The matter was heard by the Company Judge, who also recorded the said fact and having regard to the provisions of the Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, directed the respondent to pay to the appellant interest on the principal amount @ 9 per cent per annum, with liberty to the appellant herein, to move the civil court in order to establish its claim under the provisions of the aforesaid Act. An appeal was preferred by the respondent herein before the Division Bench, which modified the order of the learned Company Judge by withdrawing the leave granted to the appellant to move the civil court for claiming higher interest. 3. Having heard learned counsel for the respective parties, we are of the view that the Division Bench committed an error in withdrawing the liberty which had been granted by the learned Company Judge, to approach the civil court, having particular regard to the provisions of Section 4 of the aforesaid Act of 1993. 4. | 1[ds]Having heard learned counsel for the respective parties, we are of the view that the Division Bench committed an error in withdrawing the liberty which had been granted by the learned Company Judge, to approach the civil court, having particular regard to the provisions of Section 4 of the aforesaid Act of 1993. | 1 | 282 | 61 | ### 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:
1. Leave granted. 2. In a Winding Up proceeding, it was alleged that the respondent company was required to pay an amount of Rs.3,17,352/- to the appellant. It appears that on being provisionally appointed the Official Liquidator went to the premises of the respondent-company to take possession thereof. Thereafter, the respondent filed an application before the Company Judge for recalling the order of appointment of the Official Liquidator on the ground that the respondent-company had already paid the principal amount and that only the question of interest remains to be decided. The matter was heard by the Company Judge, who also recorded the said fact and having regard to the provisions of the Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, directed the respondent to pay to the appellant interest on the principal amount @ 9 per cent per annum, with liberty to the appellant herein, to move the civil court in order to establish its claim under the provisions of the aforesaid Act. An appeal was preferred by the respondent herein before the Division Bench, which modified the order of the learned Company Judge by withdrawing the leave granted to the appellant to move the civil court for claiming higher interest. 3. Having heard learned counsel for the respective parties, we are of the view that the Division Bench committed an error in withdrawing the liberty which had been granted by the learned Company Judge, to approach the civil court, having particular regard to the provisions of Section 4 of the aforesaid Act of 1993. 4.
### Response:
1
### Explanation:
Having heard learned counsel for the respective parties, we are of the view that the Division Bench committed an error in withdrawing the liberty which had been granted by the learned Company Judge, to approach the civil court, having particular regard to the provisions of Section 4 of the aforesaid Act of 1993.
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Vinod Solanki Vs. Union Of India | controvert the statements made by appellant in his application filed on 28.10.1994 before the learned Chief Metropolitan Magistrate. Furthermore, the Tribunal as also the Authorities misdirected themselves in law insofar as they failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. The statement made by the appellant before the learned Chief Metropolitan Magistrate was not a bald statement. The inference that burden of proof that he had made those statements under threat and coercion was solely on the proceedee does not rest on any legal principle. The question of the appellants failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidence Act. 38. In Mohtesham Mohd. Ismail vs. Spl. Director, Enforcement Directorate & Anr. [(2007) 8 SCC 254] , this Court held: "15. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well- settled principle of law that a confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. [See Haricharan Kurmi etc. v. State of Bihar AIR 1964 SC 1184 ; Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SCC 832; and Prakash Kumar v. State of Gujarat (2007) 4 SCC 266 ].16. We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram (2006) 13 SCC 210 , this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the court must seek corroboration of the purported confession from independent sources." 39. There is another aspect of the matter which cannot be lost sight of. The allegations made in the show cause notice form the foundation of the case. Appellant was asked to show cause inter alia alleging that he instead of utilizing the foreign exchange acquired on the basis of forged documents, for import of rough diamonds, got the same, after remitting abroad, credited in the foreign bank account Nos. 564-000-4888-5 and 96300-1254-9 in Standard Chartered Bank, Asian House VI Branch and American E Bank, Central Branch at Hongkong, being maintained by foreign nationals. Apart from the fact that no enquiry in that behalf had been directed, the Tribunal itself held: "14. On the basis of above discussion it established that the appellant was the brain working behind the subject import transactions where non-existent firms were established under his guidance, for which foreign exchange was acquired and remitted without corresponding import of goods particularly when the name of his co-brother, Harshad Godalia was disclosed by the appellant himself during his statement along with bank accounts of foreign nationals to whom the foreign exchange was remitted to Hongkong." The finding that he was the brain behind and not involved in the actual transaction, therefore, does not meet the requirements of law. 40. In Commissioner of Central Excise, Bangalore vs. Brindavan Beverages (P) Ltd. & Ors. [(2007) 5 SCC 388] , this Court held as under: "12. Per contra, learned Counsel for the respondents submitted that there is no material that the respondents had ever been parties to the so called arrangement, even if it is accepted for the sake of arguments but not conceded, that such arrangement was in reality made. There was no material brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause notice did not refer to any particular material to come to such a conclusion. Therefore, the Commissioner and the CEGAT were justified in holding that the respondents were entitled to the benefits.13. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder (sic franchiser). On a perusal of the show cause notice the stand of the respondents clearly gets established.14. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted." 41. For the reasons aforementioned, the | 1[ds]A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court asthe instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefore. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a lateris said to have been arrested on 27.10.1994; he was produced before the learned Chief Metropolitan Magistrate on 28.10.1994. He retracted his confession and categorically stated the manner in which such confession was purported to have been obtained.According to him, he had no connection with any alleged import transactions, opening of bank accounts, or floating of company by name of M/s Sun Enterprises, export control, Bill of Entry and other documents or alleged remittances. He stated that confessions were not only untrue but alsoallegation that he was detained in the Office of Enforcement Department for two days and two nights had not been refuted. No attempt has been made to controvert the statements made by appellant in his application filed on 28.10.1994 before the learned Chief Metropolitan Magistrate. Furthermore, the Tribunal as also the Authorities misdirected themselves in law insofar as they failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. The statement made by the appellant before the learned Chief Metropolitan Magistrate was not a bald statement. The inference that burden of proof that he had made those statements under threat and coercion was solely on the proceedee does not rest on any legal principle. The question of the appellants failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidencefind that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder (sic franchiser). On a perusal of the show cause notice the stand of the respondents clearly getsis no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted." | 1 | 7,288 | 932 | ### 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:
controvert the statements made by appellant in his application filed on 28.10.1994 before the learned Chief Metropolitan Magistrate. Furthermore, the Tribunal as also the Authorities misdirected themselves in law insofar as they failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. The statement made by the appellant before the learned Chief Metropolitan Magistrate was not a bald statement. The inference that burden of proof that he had made those statements under threat and coercion was solely on the proceedee does not rest on any legal principle. The question of the appellants failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidence Act. 38. In Mohtesham Mohd. Ismail vs. Spl. Director, Enforcement Directorate & Anr. [(2007) 8 SCC 254] , this Court held: "15. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well- settled principle of law that a confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. [See Haricharan Kurmi etc. v. State of Bihar AIR 1964 SC 1184 ; Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SCC 832; and Prakash Kumar v. State of Gujarat (2007) 4 SCC 266 ].16. We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram (2006) 13 SCC 210 , this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the court must seek corroboration of the purported confession from independent sources." 39. There is another aspect of the matter which cannot be lost sight of. The allegations made in the show cause notice form the foundation of the case. Appellant was asked to show cause inter alia alleging that he instead of utilizing the foreign exchange acquired on the basis of forged documents, for import of rough diamonds, got the same, after remitting abroad, credited in the foreign bank account Nos. 564-000-4888-5 and 96300-1254-9 in Standard Chartered Bank, Asian House VI Branch and American E Bank, Central Branch at Hongkong, being maintained by foreign nationals. Apart from the fact that no enquiry in that behalf had been directed, the Tribunal itself held: "14. On the basis of above discussion it established that the appellant was the brain working behind the subject import transactions where non-existent firms were established under his guidance, for which foreign exchange was acquired and remitted without corresponding import of goods particularly when the name of his co-brother, Harshad Godalia was disclosed by the appellant himself during his statement along with bank accounts of foreign nationals to whom the foreign exchange was remitted to Hongkong." The finding that he was the brain behind and not involved in the actual transaction, therefore, does not meet the requirements of law. 40. In Commissioner of Central Excise, Bangalore vs. Brindavan Beverages (P) Ltd. & Ors. [(2007) 5 SCC 388] , this Court held as under: "12. Per contra, learned Counsel for the respondents submitted that there is no material that the respondents had ever been parties to the so called arrangement, even if it is accepted for the sake of arguments but not conceded, that such arrangement was in reality made. There was no material brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause notice did not refer to any particular material to come to such a conclusion. Therefore, the Commissioner and the CEGAT were justified in holding that the respondents were entitled to the benefits.13. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder (sic franchiser). On a perusal of the show cause notice the stand of the respondents clearly gets established.14. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted." 41. For the reasons aforementioned, the
### Response:
1
### Explanation:
A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court asthe instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefore. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a lateris said to have been arrested on 27.10.1994; he was produced before the learned Chief Metropolitan Magistrate on 28.10.1994. He retracted his confession and categorically stated the manner in which such confession was purported to have been obtained.According to him, he had no connection with any alleged import transactions, opening of bank accounts, or floating of company by name of M/s Sun Enterprises, export control, Bill of Entry and other documents or alleged remittances. He stated that confessions were not only untrue but alsoallegation that he was detained in the Office of Enforcement Department for two days and two nights had not been refuted. No attempt has been made to controvert the statements made by appellant in his application filed on 28.10.1994 before the learned Chief Metropolitan Magistrate. Furthermore, the Tribunal as also the Authorities misdirected themselves in law insofar as they failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. The statement made by the appellant before the learned Chief Metropolitan Magistrate was not a bald statement. The inference that burden of proof that he had made those statements under threat and coercion was solely on the proceedee does not rest on any legal principle. The question of the appellants failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidencefind that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder (sic franchiser). On a perusal of the show cause notice the stand of the respondents clearly getsis no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted."
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Sriniwas Ramnath Khatod Vs. State Of Maharashtra | appear that the above observations support the Appellant. If that were so then this question would have had to be referred to a larger bench as such a finding would be against the clear wording of Section 6, which admits of no ambiguity. 11. However, in our view, in Eugenio Misquitas (supra) this Court is not holding that declaration under Section 6 is not within time provided it is published at a later date. This question has been left open. This is clear from the observations in para 17 which read as follows: "However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct". The words" may be correct" * clearly shows that the question is left open. 12. In our view the wordings of Sections 4, 6, & 11-A leave no room for doubt that the Land Acquisition Act made a distinction between a "declaration" and "publication". To be noted that under Section 4 the notification has to be published. Again under Section 11-A the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to Section 6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under Section 4". The words "published" in clauses (i) and (ii) of the first proviso to Section 6(1) refer to the publication of notification under Section 4. A plain reading of Section 6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle the wordings of the first proviso to Section 6(1) become important. The proviso lays down that "no declaration (under Section 6) shall be made after expiry of three years (under clause (i)] where the notification under Section 4 is published before the commencement of the Land Acquisition Act, 1984 and after expiry of one year (under clause (ii)] where notification under Section 4 was published after commencement of Land Acquisition Act, 1984. Thus the proviso clearly talks of "Publication" in respect of notification under Section 4 and then provide a time for "making of declaration" under Section 6. The legislature is purposely omitting to use the words "Publication of declaration" in the proviso to Section 6. 13. In our view, it is clear that the "declaration must be made" within one year from the date of "last publication of the Notification" under Section 4. Thereafter the publication under Section 6(2) may take place at a later date as it is merely a ministerial act. 14. Even if Eugenio Misquittas case was laying down what is canvassed by counsel the Appellant cannot succeed. To be noted that the paras 8 and 9 of that Judgment read as follows:" * 8. According to the learned counsel, the limitation prescribed under clause (ii) of the first proviso to Section 6(1) has to be considered with reference to the different dates/modes of publications prescribed under Section 6(2) of the Act. In support of this submission, learned counsel refers to the judgments of this Court rendered on Section 4(1) of the Act holding that the last of the dates of such publication in the series is the relevant date for computing the period of limitation under clause (ii) of the first proviso to Section 6(1). 9. Let us examine whether the learned counsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word "made" to mean "published" for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the court have been of the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. Therefore, the contention of learned counsel cannot be accepted". (emphasis supplied). 15. Thus a contention similar to the one made here had been rejected. Learned Judges then observed in para 16 as follows:" * 16. that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publications in the series that should be taken into account, but the publication that was made in the first instance under the Section". 16. Thus a detailed reading of the authority makes it clear that the last date under Section 6(2) is only for purposes of computing limitation under Section 11-A. Publications under Section 6(2) are ministerial acts and procedural in nature. In any case, in this case the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of notification under Section 4. The High Court was thus right in holding that the proceedings were not vitiated. 17. We, therefore, see no substance in the appeal. We see no infirmity in the impugned Judgment. | 0[ds]11. However, in our view, in Eugenio Misquitas (supra) this Court is not holding that declaration under Section 6 is not within time provided it is published at a later date. This question has been left open. This is clear from the observations in para 17 which read as follows: "However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct". The words" may be correct" * clearly shows that the question is left open. 12. In our view the wordings of Sections 4, 6,11-A leave no room for doubt that the Land Acquisition Act made a distinction between a "declaration" and "publication". To be noted that under Section 4 the notification has to be published. Again under Section 11-A the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to Section 6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under Section 4". The words "published" in clauses (i) and (ii) of the first proviso to Section 6(1) refer to the publication of notification under Section 4. A plain reading of Section 6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle the wordings of the first proviso to Section 6(1) become important. The proviso lays down that "no declaration (under Section 6) shall be made after expiry of three years (under clause (i)] where the notification under Section 4 is published before the commencement of the Land Acquisition Act, 1984 and after expiry of one year (under clause (ii)] where notification under Section 4 was published after commencement of Land Acquisition Act, 1984. Thus the proviso clearly talks of "Publication" in respect of notification under Section 4 and then provide a time for "making of declaration" under Section 6. The legislature is purposely omitting to use the words "Publication of declaration" in the proviso to Section 6. 13. In our view, it is clear that the "declaration must be made" within one year from the date of "last publication of the Notification" under Section 4. Thereafter the publication under Section 6(2) may take place at a later date as it is merely a ministerial act. 14. Even if Eugenio Misquittas case was laying down what is canvassed by counsel the Appellant cannot succeed. To be noted that the paras 8 and 9 of that Judgment read as follows:" * 8. According to the learned counsel, the limitation prescribed under clause (ii) of the first proviso to Section 6(1) has to be considered with reference to the different dates/modes of publications prescribed under Section 6(2) of the Act. In support of this submission, learned counsel refers to the judgments of this Court rendered on Section 4(1) of the Act holding that the last of the dates of such publication in the series is the relevant date for computing the period of limitation under clause (ii) of the first proviso to Section 6(1). 9. Let us examine whether the learned counsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word "made" to mean "published" for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the court have been of the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. Therefore, the contention of learned counsel cannot be accepted". (emphasis supplied). 15. Thus a contention similar to the one made here had been rejected. Learned Judges then observed in para 16 as follows:" * 16. that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publications in the series that should be taken into account, but the publication that was made in the first instance under the Section". 16. Thus a detailed reading of the authority makes it clear that the last date under Section 6(2) is only for purposes of computing limitation under Section 11-A. Publications under Section 6(2) are ministerial acts and procedural in nature. In any case, in this case the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of notification under Section 4. The High Court was thus right in holding that the proceedings were not vitiated. 17. We, therefore, see no substance in the appeal. We see no infirmity in the impugned Judgment. | 0 | 3,131 | 1,162 | ### Instruction:
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appear that the above observations support the Appellant. If that were so then this question would have had to be referred to a larger bench as such a finding would be against the clear wording of Section 6, which admits of no ambiguity. 11. However, in our view, in Eugenio Misquitas (supra) this Court is not holding that declaration under Section 6 is not within time provided it is published at a later date. This question has been left open. This is clear from the observations in para 17 which read as follows: "However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct". The words" may be correct" * clearly shows that the question is left open. 12. In our view the wordings of Sections 4, 6, & 11-A leave no room for doubt that the Land Acquisition Act made a distinction between a "declaration" and "publication". To be noted that under Section 4 the notification has to be published. Again under Section 11-A the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to Section 6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under Section 4". The words "published" in clauses (i) and (ii) of the first proviso to Section 6(1) refer to the publication of notification under Section 4. A plain reading of Section 6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle the wordings of the first proviso to Section 6(1) become important. The proviso lays down that "no declaration (under Section 6) shall be made after expiry of three years (under clause (i)] where the notification under Section 4 is published before the commencement of the Land Acquisition Act, 1984 and after expiry of one year (under clause (ii)] where notification under Section 4 was published after commencement of Land Acquisition Act, 1984. Thus the proviso clearly talks of "Publication" in respect of notification under Section 4 and then provide a time for "making of declaration" under Section 6. The legislature is purposely omitting to use the words "Publication of declaration" in the proviso to Section 6. 13. In our view, it is clear that the "declaration must be made" within one year from the date of "last publication of the Notification" under Section 4. Thereafter the publication under Section 6(2) may take place at a later date as it is merely a ministerial act. 14. Even if Eugenio Misquittas case was laying down what is canvassed by counsel the Appellant cannot succeed. To be noted that the paras 8 and 9 of that Judgment read as follows:" * 8. According to the learned counsel, the limitation prescribed under clause (ii) of the first proviso to Section 6(1) has to be considered with reference to the different dates/modes of publications prescribed under Section 6(2) of the Act. In support of this submission, learned counsel refers to the judgments of this Court rendered on Section 4(1) of the Act holding that the last of the dates of such publication in the series is the relevant date for computing the period of limitation under clause (ii) of the first proviso to Section 6(1). 9. Let us examine whether the learned counsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word "made" to mean "published" for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the court have been of the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. Therefore, the contention of learned counsel cannot be accepted". (emphasis supplied). 15. Thus a contention similar to the one made here had been rejected. Learned Judges then observed in para 16 as follows:" * 16. that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publications in the series that should be taken into account, but the publication that was made in the first instance under the Section". 16. Thus a detailed reading of the authority makes it clear that the last date under Section 6(2) is only for purposes of computing limitation under Section 11-A. Publications under Section 6(2) are ministerial acts and procedural in nature. In any case, in this case the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of notification under Section 4. The High Court was thus right in holding that the proceedings were not vitiated. 17. We, therefore, see no substance in the appeal. We see no infirmity in the impugned Judgment.
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11. However, in our view, in Eugenio Misquitas (supra) this Court is not holding that declaration under Section 6 is not within time provided it is published at a later date. This question has been left open. This is clear from the observations in para 17 which read as follows: "However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct". The words" may be correct" * clearly shows that the question is left open. 12. In our view the wordings of Sections 4, 6,11-A leave no room for doubt that the Land Acquisition Act made a distinction between a "declaration" and "publication". To be noted that under Section 4 the notification has to be published. Again under Section 11-A the period of two years has to be commuted from the date of "publication of the declaration". As distinct from this under the first proviso to Section 6(1) a "declaration" cannot be made after the expiry of one year from the date of "publication of the notification under Section 4". The words "published" in clauses (i) and (ii) of the first proviso to Section 6(1) refer to the publication of notification under Section 4. A plain reading of Section 6 shows that a distinction is made between a "declaration" and a "publication". Viewed from this angle the wordings of the first proviso to Section 6(1) become important. The proviso lays down that "no declaration (under Section 6) shall be made after expiry of three years (under clause (i)] where the notification under Section 4 is published before the commencement of the Land Acquisition Act, 1984 and after expiry of one year (under clause (ii)] where notification under Section 4 was published after commencement of Land Acquisition Act, 1984. Thus the proviso clearly talks of "Publication" in respect of notification under Section 4 and then provide a time for "making of declaration" under Section 6. The legislature is purposely omitting to use the words "Publication of declaration" in the proviso to Section 6. 13. In our view, it is clear that the "declaration must be made" within one year from the date of "last publication of the Notification" under Section 4. Thereafter the publication under Section 6(2) may take place at a later date as it is merely a ministerial act. 14. Even if Eugenio Misquittas case was laying down what is canvassed by counsel the Appellant cannot succeed. To be noted that the paras 8 and 9 of that Judgment read as follows:" * 8. According to the learned counsel, the limitation prescribed under clause (ii) of the first proviso to Section 6(1) has to be considered with reference to the different dates/modes of publications prescribed under Section 6(2) of the Act. In support of this submission, learned counsel refers to the judgments of this Court rendered on Section 4(1) of the Act holding that the last of the dates of such publication in the series is the relevant date for computing the period of limitation under clause (ii) of the first proviso to Section 6(1). 9. Let us examine whether the learned counsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word "made" to mean "published" for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the court have been of the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6(1) also supports this construction. Therefore, the contention of learned counsel cannot be accepted". (emphasis supplied). 15. Thus a contention similar to the one made here had been rejected. Learned Judges then observed in para 16 as follows:" * 16. that for the purpose of calculating the limitation prescribed under clause (ii) of the first proviso to Section 6(1), it is not the last of the publications in the series that should be taken into account, but the publication that was made in the first instance under the Section". 16. Thus a detailed reading of the authority makes it clear that the last date under Section 6(2) is only for purposes of computing limitation under Section 11-A. Publications under Section 6(2) are ministerial acts and procedural in nature. In any case, in this case the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of notification under Section 4. The High Court was thus right in holding that the proceedings were not vitiated. 17. We, therefore, see no substance in the appeal. We see no infirmity in the impugned Judgment.
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Municipal Council Gondia Vs. Divi Works & Suppliers, HUF & Ors | dated 07.02.2020 to the Municipal Council and consequent to which it is entitled to the payments as per the terms of the work order. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Municipal Council has preferred the present appeal. 4. The present appeal was heard by this Court on 07.02.2022. It was submitted on behalf of the original writ petitioners that in fact they have already manufactured the goods which are customized and therefore, if the Municipal Council is not directed to lift the customized manufactured goods which the original writ petitioners prepared/got prepared as per the work order, the original writ petitioners would suffer a huge loss. This Court passed the following order on 07.02.2022: - Having heard learned counsel appearing on behalf of the respective parties and considering the fact that as such on the order being placed by the petitioner, the respondent has already manufactured the goods which are customized and during the last two years, there may be some difficulty faced by the petitioner due to COVID-19 pandemic. But, now as the schools have restarted, we direct the official of the petitioner to visit the place where the manufactured goods are kept and identify the goods which are immediately required, at this stage which shall not be less than 25% of the total quantity manufactured and also make a schedule with respect to the balance goods manufactured and when the goods will be lifted and payment shall be made. Put up on 21.02.2022. 5. Shri Gaurav Agrawal, learned counsel appearing on behalf of the appellant – Municipal Council has submitted that pursuant to the order passed by this Court on 07.02.2022, the official of the Council visited the premises of respondent No.1 on 10.02.2022. The officials of the Council were asked to visit Nagpur which they did on 11.02.2022. On inspection of the goods, it was seen that the goods do not meet the requirement of the work order and that they were not prepared for the Council as claimed by the original writ petitioners before this Court. It is pointed out that even vide communication dated 18.02.2022 respondent No.1 had admitted that goods were not available. It is therefore submitted that there are no manufactured goods available as per the specifications and the requirements of the Council and as per the work order and even the manufactured goods are not available till date, and hence there is no question of accepting any goods as per the work order as directed by the High Court. 6. Shri R.L. Khapre, learned Senior Advocate appearing on behalf of the original writ petitioners has tried to explain the reasons as to why the manufactured goods are not available. It is submitted that as more than two years have passed and the goods manufactured with specifications were dismantled for proper storage as well as maintenance including polishing thereof and were kept in the available space/storage at Nagpur as it was practically impossible to store such huge quantity of material for such a long period due to unavailability of space as well as having regard to the their maintenance. Therefore, it is requested to grant some time for reassembling the goods in question for supply as early as possible. 7. We have heard the learned counsel appearing on behalf of the respective parties at length. 8. At the outset, it is required to be noted that by the impugned judgment and order the High Court has issued a writ of mandamus virtually granting the relief of specific performance of the contract/work order. From the impugned judgment and order passed by the High Court it appears that the High Court was made to believe that the original writ petitioners had already manufactured the goods which are customized and as per the specifications and the work order. However, it is now found that there are no manufactured goods readily available which can be supplied to the appellant – Council. There are disputed questions of fact such as whether in fact the goods were manufactured as per the specifications or not. Nothing was on record before the High Court that goods were in fact and actually manufactured by the original writ petitioner No.1, as per the specifications and the requirements of the Council and as per the work order. In absence of any evidence and material on record and there being disputed questions of facts the High Court ought not to have passed the impugned judgment and order directing the Council to continue the work order and accept the goods from the original writ petitioner No.1 and to make the payments as per the work order. Even otherwise, no writ of mandamus could have been issued virtually granting the writ for specific performance of the contract/work order in a writ petition under Article 226 of the Constitution of India. The original writ petitioners ought to have been relegated to file a civil suit for appropriate relief of losses/damages, if any, sustained. 8.1 Even otherwise on merits also the High Court has erred in setting aside the communication dated 18.05.2020 and 07.07.2020. The High Court has not at all appreciated the reasons for suspending/cancelling the work order till further orders. It is to be noted that the decision dated 07.07.2020 was taken pursuant to the G.R. dated 04.05.2020 which was necessitated due to Covid-19 Pandemic and there was a lockdown and the schools were closed and that the Council had no sufficient funds. Even the said decision was taken after calling for a report from the Education Officer in regard to the tender/work order issued to the original writ petitioner No.1 and the Education Officer informed that the original writ petitioner No.1 has not taken any further steps in regard to supply of material as per the work order. Therefore, the High Court has erred in quashing and setting aside the communication dated 07.02.2020 in exercise of powers under Article 226 of the Constitution of India. | 1[ds]8. At the outset, it is required to be noted that by the impugned judgment and order the High Court has issued a writ of mandamus virtually granting the relief of specific performance of the contract/work order. From the impugned judgment and order passed by the High Court it appears that the High Court was made to believe that the original writ petitioners had already manufactured the goods which are customized and as per the specifications and the work order. However, it is now found that there are no manufactured goods readily available which can be supplied to the appellant – Council. There are disputed questions of fact such as whether in fact the goods were manufactured as per the specifications or not. Nothing was on record before the High Court that goods were in fact and actually manufactured by the original writ petitioner No.1, as per the specifications and the requirements of the Council and as per the work order. In absence of any evidence and material on record and there being disputed questions of facts the High Court ought not to have passed the impugned judgment and order directing the Council to continue the work order and accept the goods from the original writ petitioner No.1 and to make the payments as per the work order. Even otherwise, no writ of mandamus could have been issued virtually granting the writ for specific performance of the contract/work order in a writ petition under Article 226 of the Constitution of India. The original writ petitioners ought to have been relegated to file a civil suit for appropriate relief of losses/damages, if any, sustained.8.1 Even otherwise on merits also the High Court has erred in setting aside the communication dated 18.05.2020 and 07.07.2020. The High Court has not at all appreciated the reasons for suspending/cancelling the work order till further orders. It is to be noted that the decision dated 07.07.2020 was taken pursuant to the G.R. dated 04.05.2020 which was necessitated due to Covid-19 Pandemic and there was a lockdown and the schools were closed and that the Council had no sufficient funds. Even the said decision was taken after calling for a report from the Education Officer in regard to the tender/work order issued to the original writ petitioner No.1 and the Education Officer informed that the original writ petitioner No.1 has not taken any further steps in regard to supply of material as per the work order. Therefore, the High Court has erred in quashing and setting aside the communication dated 07.02.2020 in exercise of powers under Article 226 of the Constitution of India. | 1 | 1,671 | 461 | ### Instruction:
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dated 07.02.2020 to the Municipal Council and consequent to which it is entitled to the payments as per the terms of the work order. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Municipal Council has preferred the present appeal. 4. The present appeal was heard by this Court on 07.02.2022. It was submitted on behalf of the original writ petitioners that in fact they have already manufactured the goods which are customized and therefore, if the Municipal Council is not directed to lift the customized manufactured goods which the original writ petitioners prepared/got prepared as per the work order, the original writ petitioners would suffer a huge loss. This Court passed the following order on 07.02.2022: - Having heard learned counsel appearing on behalf of the respective parties and considering the fact that as such on the order being placed by the petitioner, the respondent has already manufactured the goods which are customized and during the last two years, there may be some difficulty faced by the petitioner due to COVID-19 pandemic. But, now as the schools have restarted, we direct the official of the petitioner to visit the place where the manufactured goods are kept and identify the goods which are immediately required, at this stage which shall not be less than 25% of the total quantity manufactured and also make a schedule with respect to the balance goods manufactured and when the goods will be lifted and payment shall be made. Put up on 21.02.2022. 5. Shri Gaurav Agrawal, learned counsel appearing on behalf of the appellant – Municipal Council has submitted that pursuant to the order passed by this Court on 07.02.2022, the official of the Council visited the premises of respondent No.1 on 10.02.2022. The officials of the Council were asked to visit Nagpur which they did on 11.02.2022. On inspection of the goods, it was seen that the goods do not meet the requirement of the work order and that they were not prepared for the Council as claimed by the original writ petitioners before this Court. It is pointed out that even vide communication dated 18.02.2022 respondent No.1 had admitted that goods were not available. It is therefore submitted that there are no manufactured goods available as per the specifications and the requirements of the Council and as per the work order and even the manufactured goods are not available till date, and hence there is no question of accepting any goods as per the work order as directed by the High Court. 6. Shri R.L. Khapre, learned Senior Advocate appearing on behalf of the original writ petitioners has tried to explain the reasons as to why the manufactured goods are not available. It is submitted that as more than two years have passed and the goods manufactured with specifications were dismantled for proper storage as well as maintenance including polishing thereof and were kept in the available space/storage at Nagpur as it was practically impossible to store such huge quantity of material for such a long period due to unavailability of space as well as having regard to the their maintenance. Therefore, it is requested to grant some time for reassembling the goods in question for supply as early as possible. 7. We have heard the learned counsel appearing on behalf of the respective parties at length. 8. At the outset, it is required to be noted that by the impugned judgment and order the High Court has issued a writ of mandamus virtually granting the relief of specific performance of the contract/work order. From the impugned judgment and order passed by the High Court it appears that the High Court was made to believe that the original writ petitioners had already manufactured the goods which are customized and as per the specifications and the work order. However, it is now found that there are no manufactured goods readily available which can be supplied to the appellant – Council. There are disputed questions of fact such as whether in fact the goods were manufactured as per the specifications or not. Nothing was on record before the High Court that goods were in fact and actually manufactured by the original writ petitioner No.1, as per the specifications and the requirements of the Council and as per the work order. In absence of any evidence and material on record and there being disputed questions of facts the High Court ought not to have passed the impugned judgment and order directing the Council to continue the work order and accept the goods from the original writ petitioner No.1 and to make the payments as per the work order. Even otherwise, no writ of mandamus could have been issued virtually granting the writ for specific performance of the contract/work order in a writ petition under Article 226 of the Constitution of India. The original writ petitioners ought to have been relegated to file a civil suit for appropriate relief of losses/damages, if any, sustained. 8.1 Even otherwise on merits also the High Court has erred in setting aside the communication dated 18.05.2020 and 07.07.2020. The High Court has not at all appreciated the reasons for suspending/cancelling the work order till further orders. It is to be noted that the decision dated 07.07.2020 was taken pursuant to the G.R. dated 04.05.2020 which was necessitated due to Covid-19 Pandemic and there was a lockdown and the schools were closed and that the Council had no sufficient funds. Even the said decision was taken after calling for a report from the Education Officer in regard to the tender/work order issued to the original writ petitioner No.1 and the Education Officer informed that the original writ petitioner No.1 has not taken any further steps in regard to supply of material as per the work order. Therefore, the High Court has erred in quashing and setting aside the communication dated 07.02.2020 in exercise of powers under Article 226 of the Constitution of India.
### Response:
1
### Explanation:
8. At the outset, it is required to be noted that by the impugned judgment and order the High Court has issued a writ of mandamus virtually granting the relief of specific performance of the contract/work order. From the impugned judgment and order passed by the High Court it appears that the High Court was made to believe that the original writ petitioners had already manufactured the goods which are customized and as per the specifications and the work order. However, it is now found that there are no manufactured goods readily available which can be supplied to the appellant – Council. There are disputed questions of fact such as whether in fact the goods were manufactured as per the specifications or not. Nothing was on record before the High Court that goods were in fact and actually manufactured by the original writ petitioner No.1, as per the specifications and the requirements of the Council and as per the work order. In absence of any evidence and material on record and there being disputed questions of facts the High Court ought not to have passed the impugned judgment and order directing the Council to continue the work order and accept the goods from the original writ petitioner No.1 and to make the payments as per the work order. Even otherwise, no writ of mandamus could have been issued virtually granting the writ for specific performance of the contract/work order in a writ petition under Article 226 of the Constitution of India. The original writ petitioners ought to have been relegated to file a civil suit for appropriate relief of losses/damages, if any, sustained.8.1 Even otherwise on merits also the High Court has erred in setting aside the communication dated 18.05.2020 and 07.07.2020. The High Court has not at all appreciated the reasons for suspending/cancelling the work order till further orders. It is to be noted that the decision dated 07.07.2020 was taken pursuant to the G.R. dated 04.05.2020 which was necessitated due to Covid-19 Pandemic and there was a lockdown and the schools were closed and that the Council had no sufficient funds. Even the said decision was taken after calling for a report from the Education Officer in regard to the tender/work order issued to the original writ petitioner No.1 and the Education Officer informed that the original writ petitioner No.1 has not taken any further steps in regard to supply of material as per the work order. Therefore, the High Court has erred in quashing and setting aside the communication dated 07.02.2020 in exercise of powers under Article 226 of the Constitution of India.
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K. A. Natarajan Etc Vs. M. Naina Mohd. & Ors. Etc | Hidayatullah, CJ. 1. These are petitions for special leave against tile orders of the Division Bench of the High Court of Madras by which the High Court has ordered that the permits granted by the Regional Transport Authority will operate and not those which the State Transport Appellate Tribunal in appeal granted. 2. The facts may be stated, taking as a sample, Special Leave Petition No. 2430 of 1969. The original grantee of the permit by the Regional Transport Authority may be described as A. The date of the grant was November 20, l966. On appeal by the respondent who may be described as B, the State Transport Appellate Tribunal cancelled the grant made to A by the Regional Transport Authority. This was on July 18, 1967. A writ petition was thereupon filed by A and it was allowed by the learned single Judge on November 4, 1969 and the order of the State Transport Appellate Tribunal was quashed. When the matter went before the Letters Patent Bench, it was observed that in view of the fact that only the grantee of the Regional Transport Authority had a valid permit, it was not possible to grant any permit to B who was recognised by the State Transport Appellate Tribunal. They followed an earlier ruling of the court and restricted the grant pending disposal of the Letters Patent appeal to the grantee of the Regional Transport Authority who alone was permitted to operate on the route. It appears that only one operator could be allowed on this route because of a Section 47 (3) determination. 3. In these petitions for special leave which are ex facie against the orders made in interlocutory proceedings, the attempt is to get the permits restored to B. It is claimed that this involves a question of jurisdiction and that question is whether the High Court could recognise A the grantee of the Regional Transport Authority when his permit had been cancelled by the State Transport Appellate Tribunal. We think that these are matters into which this Court cannot be invited to go under Art. 136 of the Constitution, because the appeal itself is pending before the High Court and what the High Court has done is to give effect to the order of the learned single Judge. In other words, the Letters Patent Bench has not attempted to pass any special order of its own staying the operation of the decision of the learned single Judge. We think it would be wrong for us to interfere at this stage. It may be that the question may come up in some other form before us when the appeals from the Letters Patent decision are brought before this Court. If and when this happens, we may find it convenient to express our opinion on the question of jurisdiction of the High Court to go into such matters in appeal or in original writ petitions. Beyond this, we do not wish to express any opinion, one way or the other, at this stage. | 0[ds]3. In these petitions for special leave which are ex facie against the orders made in interlocutory proceedings, the attempt is to get the permits restored to B. It is claimed that this involves a question of jurisdiction and that question is whether the High Court could recognise A the grantee of the Regional Transport Authority when his permit had been cancelled by the State Transport Appellate Tribunal. We think that these are matters into which this Court cannot be invited to go under Art. 136 of the Constitution, because the appeal itself is pending before the High Court and what the High Court has done is to give effect to the order of the learned single Judge. In other words, the Letters Patent Bench has not attempted to pass any special order of its own staying the operation of the decision of the learned single Judge. We think it would be wrong for us to interfere at this stage. It may be that the question may come up in some other form before us when the appeals from the Letters Patent decision are brought before this Court. If and when this happens, we may find it convenient to express our opinion on the question of jurisdiction of the High Court to go into such matters in appeal or in original writ petitions. Beyond this, we do not wish to express any opinion, one way or the other, at this stage. | 0 | 548 | 263 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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Hidayatullah, CJ. 1. These are petitions for special leave against tile orders of the Division Bench of the High Court of Madras by which the High Court has ordered that the permits granted by the Regional Transport Authority will operate and not those which the State Transport Appellate Tribunal in appeal granted. 2. The facts may be stated, taking as a sample, Special Leave Petition No. 2430 of 1969. The original grantee of the permit by the Regional Transport Authority may be described as A. The date of the grant was November 20, l966. On appeal by the respondent who may be described as B, the State Transport Appellate Tribunal cancelled the grant made to A by the Regional Transport Authority. This was on July 18, 1967. A writ petition was thereupon filed by A and it was allowed by the learned single Judge on November 4, 1969 and the order of the State Transport Appellate Tribunal was quashed. When the matter went before the Letters Patent Bench, it was observed that in view of the fact that only the grantee of the Regional Transport Authority had a valid permit, it was not possible to grant any permit to B who was recognised by the State Transport Appellate Tribunal. They followed an earlier ruling of the court and restricted the grant pending disposal of the Letters Patent appeal to the grantee of the Regional Transport Authority who alone was permitted to operate on the route. It appears that only one operator could be allowed on this route because of a Section 47 (3) determination. 3. In these petitions for special leave which are ex facie against the orders made in interlocutory proceedings, the attempt is to get the permits restored to B. It is claimed that this involves a question of jurisdiction and that question is whether the High Court could recognise A the grantee of the Regional Transport Authority when his permit had been cancelled by the State Transport Appellate Tribunal. We think that these are matters into which this Court cannot be invited to go under Art. 136 of the Constitution, because the appeal itself is pending before the High Court and what the High Court has done is to give effect to the order of the learned single Judge. In other words, the Letters Patent Bench has not attempted to pass any special order of its own staying the operation of the decision of the learned single Judge. We think it would be wrong for us to interfere at this stage. It may be that the question may come up in some other form before us when the appeals from the Letters Patent decision are brought before this Court. If and when this happens, we may find it convenient to express our opinion on the question of jurisdiction of the High Court to go into such matters in appeal or in original writ petitions. Beyond this, we do not wish to express any opinion, one way or the other, at this stage.
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0
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3. In these petitions for special leave which are ex facie against the orders made in interlocutory proceedings, the attempt is to get the permits restored to B. It is claimed that this involves a question of jurisdiction and that question is whether the High Court could recognise A the grantee of the Regional Transport Authority when his permit had been cancelled by the State Transport Appellate Tribunal. We think that these are matters into which this Court cannot be invited to go under Art. 136 of the Constitution, because the appeal itself is pending before the High Court and what the High Court has done is to give effect to the order of the learned single Judge. In other words, the Letters Patent Bench has not attempted to pass any special order of its own staying the operation of the decision of the learned single Judge. We think it would be wrong for us to interfere at this stage. It may be that the question may come up in some other form before us when the appeals from the Letters Patent decision are brought before this Court. If and when this happens, we may find it convenient to express our opinion on the question of jurisdiction of the High Court to go into such matters in appeal or in original writ petitions. Beyond this, we do not wish to express any opinion, one way or the other, at this stage.
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M/S.Meghal Homes Pvt. Ltd Vs. Shree Niwas Girni K.K. Samiti | and sale. As we read Section 392 of the Act, it only gives power to the Court to make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement. This is only a power that enables the court to provide for proper working of compromise or arrangement, it cannot be understood as a power to make substantial modifications in the scheme approved by the members in a meeting called in terms of Section 391 of the Act. A modification in the arrangement that may be considered necessary for the proper working of the compromise or arrangement cannot be taken as the same as a modification in the compromise or arrangement itself and any such modification in the scheme or arrangement or an essential term thereof must go back to the general meeting in terms of Section 391 of the Act and a fresh approval obtained therefor. The fact that no member or creditor opposed it in court cannot be considered as a substitute for following the requirements of Section 391 of the Companies Act for approval of the compromise or arrangement as now modified or proposed to be modified. In Miheer H. Mafatlal Vs. Mafatlal Industries Ltd. (supra), this Court had insisted that the procedural requirements of Section 391 must be satisfied before the court can consider the acceptability of a scheme even in respect of a Company not in liquidation. Therefore, we are not in a position to accept the argument on behalf of the respondents that the scheme now as modified by the decision of the Division Bench need not go back to the general meeting of the members in terms of Section 391 of the Act. We must also remember that at least before us there is serious objection to the modifications by one of the Somanis who are the promoters of the Company in liquidation and the sponsors of the arrangement and that objection cannot be brushed aside. 28. We find that the modifications proposed alters the position of the shareholders vis-à-vis the Company. Instead of the company reviving the spinning unit as recommended by the State Bank of India Capital Markets Limited, as adopted in the General Meeting, now the Company will have nothing to do with the mill lands and the whole of the mill lands will pass on to LBPL on LBPL paying a value of Rs. 97.50 crores to SCML and LBPL will start an industry of its own in that property. This cannot be considered to be a modification in the scheme necessary for the proper working of the compromise or arrangement. This is a modification of the scheme itself. Same is the position regarding the provision of replacing the resolution passed that if any surplus amounts are available, SCML would start a viable industry in any part of the State of Maharashtra, by a commitment that SCML would establish an industry in any part of the State of Maharashtra on an investment of Rs. 20 crores. This again is an obligation cast on the members of SCML and we are of the view that this cannot also be taken to be a modification which the Court can bring about on its own under Section 392 of the Act on the pretext that it is a modification necessary for the proper working of the compromise or arrangement. We have no hesitation in holding that in any event, the Division Bench of the High Court ought to have directed a reconvening of the meeting of the members of the Company in terms of Section 391 of the Act to consider the modifications and ensured that the approval thereof by the requisite majority existed. 29. In the view we have thus taken, we are satisfied that it is a fit case where we should set aside the decision of the Division Bench as also of the Company Court and remand the proceedings to the Company Court. The Company Court first will direct the sponsors of the scheme to call a meeting of the concerned in terms of Section 391 of the Act and seek an approval for the modifications now suggested by the Division Bench or that may be put forward at the meeting. If the requisite majority approves the modifications and the matter comes back to the Company Court, the Company Court will consider whether the compromise or arrangement put forward is one that deserves to be accepted in respect of a company which has been ordered to be wound up in the light of what we have indicated above and what the Division Bench had earlier indicated in its order dated 4.4.1995. 30. In addition to expanding and supporting the submission that in terms of Sections 391 to 393 of the Act, the court had the power to accept the compromise or arrangement even in respect of a company ordered to be wound up, independent of Section 466 of the Act and in that process the power to stay a winding up, learned Senior Counsel appearing for the Workers Union argued on behalf of the workmen that interference by this Court would further delay the benefits that would accrue to the workers under the arrangement now approved by the Division Bench and considering the long lapse of time, that would be unjust. Learned counsel highlighted the additional benefits that would accrue to the workers under the present scheme. Though, we do appreciate this aspect of the matter, having taken the view that the arrangement has to go back to the meeting of members, creditors, etc. of the company in terms of Section 391 of the Act and once it is adopted or adopted with modifications with the requisite majority at the meeting, the arrangement would require a fresh scrutiny by the Company Court thereafter, we cannot avoid interfering with the decision of the Division Bench on the ground put forward by learned Senior Counsel of benefit to the workers. 31. | 1[ds]When a Company is ordered to be wound up, the assets of it, are put in possession of the Official Liquidator. The assets become custodia legis. The follow up, in the absence of a revival of the Company, is the realization of the assets of the company by the Official Liquidator and distribution of the proceeds to the creditors, workers, and contributories of the company ultimately resulting in the death of the company by an order under Section 481 of the Act, being passed. But, nothing stands in the way of the Company Court, before the ultimate step is taken or before the assets are disposed of, to accept a scheme or proposal for revival of the Company. In that context, the Court has necessarily to see whether the Scheme contemplates revival of the business of the company, makes provisions for paying off creditors or for satisfying their claims as agreed to by them and for meeting the liability of the workers in terms of Section 529 and Section 529A of the Act. Of course, the Court has to see to the bona fides of the scheme and to ensure that what is put forward is not a ruse to dispose of the assets of the Company in liquidationSection 392 of the Act,only gives power to the Court to make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement. This is only a power that enables the court to provide for proper working of compromise or arrangement, it cannot be understood as a power to make substantial modifications in the scheme approved by the members in a meeting called in terms of Section 391 of the Act. A modification in the arrangement that may be considered necessary for the proper working of the compromise or arrangement cannot be taken as the same as a modification in the compromise or arrangement itself and any such modification in the scheme or arrangement or an essential term thereof must go back to the general meeting in terms of Section 391 of the Act and a fresh approval obtained therefor. The fact that no member or creditor opposed it in court cannot be considered as a substitute for following the requirements of Section 391 of the Companies Act for approval of the compromise or arrangement as now modified or proposed to be modified. | 1 | 10,616 | 433 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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and sale. As we read Section 392 of the Act, it only gives power to the Court to make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement. This is only a power that enables the court to provide for proper working of compromise or arrangement, it cannot be understood as a power to make substantial modifications in the scheme approved by the members in a meeting called in terms of Section 391 of the Act. A modification in the arrangement that may be considered necessary for the proper working of the compromise or arrangement cannot be taken as the same as a modification in the compromise or arrangement itself and any such modification in the scheme or arrangement or an essential term thereof must go back to the general meeting in terms of Section 391 of the Act and a fresh approval obtained therefor. The fact that no member or creditor opposed it in court cannot be considered as a substitute for following the requirements of Section 391 of the Companies Act for approval of the compromise or arrangement as now modified or proposed to be modified. In Miheer H. Mafatlal Vs. Mafatlal Industries Ltd. (supra), this Court had insisted that the procedural requirements of Section 391 must be satisfied before the court can consider the acceptability of a scheme even in respect of a Company not in liquidation. Therefore, we are not in a position to accept the argument on behalf of the respondents that the scheme now as modified by the decision of the Division Bench need not go back to the general meeting of the members in terms of Section 391 of the Act. We must also remember that at least before us there is serious objection to the modifications by one of the Somanis who are the promoters of the Company in liquidation and the sponsors of the arrangement and that objection cannot be brushed aside. 28. We find that the modifications proposed alters the position of the shareholders vis-à-vis the Company. Instead of the company reviving the spinning unit as recommended by the State Bank of India Capital Markets Limited, as adopted in the General Meeting, now the Company will have nothing to do with the mill lands and the whole of the mill lands will pass on to LBPL on LBPL paying a value of Rs. 97.50 crores to SCML and LBPL will start an industry of its own in that property. This cannot be considered to be a modification in the scheme necessary for the proper working of the compromise or arrangement. This is a modification of the scheme itself. Same is the position regarding the provision of replacing the resolution passed that if any surplus amounts are available, SCML would start a viable industry in any part of the State of Maharashtra, by a commitment that SCML would establish an industry in any part of the State of Maharashtra on an investment of Rs. 20 crores. This again is an obligation cast on the members of SCML and we are of the view that this cannot also be taken to be a modification which the Court can bring about on its own under Section 392 of the Act on the pretext that it is a modification necessary for the proper working of the compromise or arrangement. We have no hesitation in holding that in any event, the Division Bench of the High Court ought to have directed a reconvening of the meeting of the members of the Company in terms of Section 391 of the Act to consider the modifications and ensured that the approval thereof by the requisite majority existed. 29. In the view we have thus taken, we are satisfied that it is a fit case where we should set aside the decision of the Division Bench as also of the Company Court and remand the proceedings to the Company Court. The Company Court first will direct the sponsors of the scheme to call a meeting of the concerned in terms of Section 391 of the Act and seek an approval for the modifications now suggested by the Division Bench or that may be put forward at the meeting. If the requisite majority approves the modifications and the matter comes back to the Company Court, the Company Court will consider whether the compromise or arrangement put forward is one that deserves to be accepted in respect of a company which has been ordered to be wound up in the light of what we have indicated above and what the Division Bench had earlier indicated in its order dated 4.4.1995. 30. In addition to expanding and supporting the submission that in terms of Sections 391 to 393 of the Act, the court had the power to accept the compromise or arrangement even in respect of a company ordered to be wound up, independent of Section 466 of the Act and in that process the power to stay a winding up, learned Senior Counsel appearing for the Workers Union argued on behalf of the workmen that interference by this Court would further delay the benefits that would accrue to the workers under the arrangement now approved by the Division Bench and considering the long lapse of time, that would be unjust. Learned counsel highlighted the additional benefits that would accrue to the workers under the present scheme. Though, we do appreciate this aspect of the matter, having taken the view that the arrangement has to go back to the meeting of members, creditors, etc. of the company in terms of Section 391 of the Act and once it is adopted or adopted with modifications with the requisite majority at the meeting, the arrangement would require a fresh scrutiny by the Company Court thereafter, we cannot avoid interfering with the decision of the Division Bench on the ground put forward by learned Senior Counsel of benefit to the workers. 31.
### Response:
1
### Explanation:
When a Company is ordered to be wound up, the assets of it, are put in possession of the Official Liquidator. The assets become custodia legis. The follow up, in the absence of a revival of the Company, is the realization of the assets of the company by the Official Liquidator and distribution of the proceeds to the creditors, workers, and contributories of the company ultimately resulting in the death of the company by an order under Section 481 of the Act, being passed. But, nothing stands in the way of the Company Court, before the ultimate step is taken or before the assets are disposed of, to accept a scheme or proposal for revival of the Company. In that context, the Court has necessarily to see whether the Scheme contemplates revival of the business of the company, makes provisions for paying off creditors or for satisfying their claims as agreed to by them and for meeting the liability of the workers in terms of Section 529 and Section 529A of the Act. Of course, the Court has to see to the bona fides of the scheme and to ensure that what is put forward is not a ruse to dispose of the assets of the Company in liquidationSection 392 of the Act,only gives power to the Court to make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement. This is only a power that enables the court to provide for proper working of compromise or arrangement, it cannot be understood as a power to make substantial modifications in the scheme approved by the members in a meeting called in terms of Section 391 of the Act. A modification in the arrangement that may be considered necessary for the proper working of the compromise or arrangement cannot be taken as the same as a modification in the compromise or arrangement itself and any such modification in the scheme or arrangement or an essential term thereof must go back to the general meeting in terms of Section 391 of the Act and a fresh approval obtained therefor. The fact that no member or creditor opposed it in court cannot be considered as a substitute for following the requirements of Section 391 of the Companies Act for approval of the compromise or arrangement as now modified or proposed to be modified.
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Union of India & Others Vs. Ramesh Gandhi | take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, ....................” 28. In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 SC 604 , this Court after reviewing large number of cases on the question of the quashing the FIR held at paras 108 and 109 as follows: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” | 1[ds]But, in our opinion, the entire enquiry proceeded on a wrong premise that no examination, as to how a judgment of a superior Court came into existence, is permissible in the system of law which we follow.22. This Court on more than one occasion held that fraud vitiates everything including judicial acts. In S.P. Chengal Varaya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. & Ors., (1994) 1 SCC 1 , this Court observed as follows in paras all judicial acts, ecclesiastical orobserved Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.Again in A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors., AIR 2007 SC 1546 , this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows:38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as nonest by every Court, superior or inferior.[emphasis supplied]If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest. Therefore, the conclusion reached by the judgment under appeal that no Court can examine the correctness of the contents of the impugned FIR, is unsustainable and without any basis in law. The very complaint in the FIR is that the judgment of the Calcutta High Court, as affirmed by this Court, is a consequence of a deliberate and dishonest suppression of the relevant facts necessary for adjudicating the rights and obligations of the parties to the said litigation24. Coming to the question as to what amounts for securing a judgment by playing fraud in the Court- In Chengal Varaya Naidu (supra), this Court categorically held that the non-disclosure of all the necessary facts tantamounts to playing fraud on the Courts. At para 6 of the said judgment, it was held ashe withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party.The allegation in the FIR is that the various accused deliberately withheld/suppressed the fact that the private company, by the time it approached the Calcutta High Court in writ petition Nos.940 and 941 of 1994, had already committed breach of its obligations arising of the contracts from out of which the entire litigation arose. A fact which is greatly relevant in deciding the entitlement of the private company to seek various reliefs such as the ones sought by it before the Calcutta High Court. It is further specific allegation in the FIR such a non-disclosure/suppression of the crucial fact was wilful and deliberate pursuant to a conspiracy between all the accused to secure an illegal and wrongful monetary gain to the private company. Therefore, in our opinion the Judgment under appeal cannot be sustained.26. Coming to the question of the scope of the jurisdiction to quash an FIR, either in the exercise of statutory jurisdiction under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India, the law is well settled and this Court in a catena of decisions laid down clear principles and indicated parameters which justify the quashing of an FIR. We do not propose to catalogue all the cases where the issue was examined but notice only two of them and indicate the consistent principles laid down by this Court in this regard.27. In R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866 , this Court at para 6is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, ....................In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 SC 604 , this Court after reviewing large number of cases on the question of the quashing the FIR held at paras 108 and 109 asIn the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or | 1 | 11,767 | 2,258 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, ....................” 28. In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 SC 604 , this Court after reviewing large number of cases on the question of the quashing the FIR held at paras 108 and 109 as follows: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”
### Response:
1
### Explanation:
possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, ....................In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 SC 604 , this Court after reviewing large number of cases on the question of the quashing the FIR held at paras 108 and 109 asIn the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or
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Executive Committee of Meerut College, Meerut and Others Vs. Vice Chancellor, Meerut University, Meerut and Another | room for doubt that he is disqualified from being chosen as a member of the Management of the Meerut College, because his brother receives remuneration for the work done by him as a Lecturer in the Law Department of the College.Shri S.N. Kacker, who appears on behalf of the appellants, relies on the Proviso to section 39 and argues that cases in which remuneration is accepted by a relative in his capacity as a teacher are exempted from the operation of section 39 and since, Appellant 3s brother accepts remuneration from the college for the work which he does as a teacher in that College. Appellant 3 is not disqualified for being chosen as a member of the Management of the College. This submission is only superficially attractive. By reason of the Proviso, the disqualification provided for by section 39 will not apply "to the acceptance of any remuneration by a teacher as such". What the proviso means is that a teacher shall not be disqualified for being chosen as a member of the Management of the College for the reason that he accepts remuneration from the College in his capacity as a teacher. The object of the proviso is to enable the teachers of a college to become members of the Management of the college The exception carved out by the proviso cannot apply to cases like the present one in which the person elected to the Executive Committee of the college is not himself a teacher but whose relative is a teacher. Teachers are saved from the disqualification, not their relatives. In this case, Appellant 3s brother will not incur the disqualification merely because he accepts remuneration as a teacher. He is protected by the Proviso. The disqualification is incurred by Appellant 3 because his brother, who is a teacher, accepts remuneration for the work done by him for the College. Appellant 3 is not protected by the proviso.4. The proviso, thus interpreted, will give meaning to the provisions of Statute 13.05 of the Meerut University First Statutes, 1977, which were Published by a Notification dated April 20, 1977. Those statutes were framed by the Government of U.P. in exercise of the powers conferred by sub-section (1) of section 50 of the Act. Statute 13.05 provides by clause (b) that the constitution of the Management of every college shall provide that "Twenty-five per-centum of the members of the Management are teachers (including the Principal)". The Statutes were framed after the Act was passed and must reasonably be assumed to have been framed in furtherance of the provisions of the Act. The object of the proviso to section 39 is to exclude teachers as a class from the operation of the provision under which persons, who accept remuneration for the work done for a college, are disqualified from being chosen as members of the Management of that college. Clause (b) of Statute 13.05 effectuates that purpose by providing that 25 percent of the members of the Management of a college shall be teachers. Recent reforms in the sphere of education lay considerable emphasis on the association of teachers with the management of institutions whose success depends largely upon their performance. That is why the proviso to section 39 gives protection to the teachers and Statute 13.05 makes it obligatory that 25 percent of the members of Management of a College shall be teachers. Granting protection to relatives of teachers, as canvassed by the appellants, is foreign to the very object of the proviso. Teachers can and ought to be on the management bodies of educational institutions. Their relatives are disqualified from being so chosen or appointed, the reason being that such relatives should not become a handy medium for distributing favours and patronage to the teachers.We find that by a judgment dated August 26, 1981 given in Civil Misc. Writ No. 11147 of 1980, N D. Ojha, J. of the Allahabad High Court has taken the same view as we have, of the proviso to s.39. We affirm that view.5. We do not also see any substance in the appellants submission that section 39 of the Act is prospective in its operation in the sense that if a person was a teacher prior to the date when the Act came into force, his relative will not be disqualified even if he is elected after the coming into force of the Act. While interpreting a statute, we must have regard to the substance of the matter and hypertechnical considerations should be ruled out. Then again, the interpretation should, as far as possible, further the object of the statute. The mere circumstance that section 39 uses a verb in the present tense, namely, "accepts", will not justify the conclusion that the section will apply to those cases only wherein the remuneration is accepted by the teacher for the first time after the Act came into force. The section, on its terms, must apply even to those cases in which a teacher has been accepting remuneration prior to the date on which the Act came into force, with the result that the relative of such a teacher cannot be chosen as a member of the management of the college. The judgment dated August 12, 198 1 rendered by a Division Bench of the Allahabad High Court in Civil Misc. Writ No. 8647 of 1980 which takes the view that section 39 is prospective in operation in the sense projected by the learned counsel for the appellants is, with respect, not correct.6. We are informed by Shri Kacker that a Division Bench of the Allahabad High Court has taken a view of the proviso to section 39 contrary to that of Ojha J. Counsel urges that the Vice-Chancellor and Chancellor of the University were bound by the ruling of the Division Bench. We are not sure that there is any contrary judgment of the High Court on the interpretation of the Proviso. If there is any such judgment, it is not good law.Fo | 0[ds]We do not also see any substance in the appellants submission that section 39 of the Act is prospective in its operation in the sense that if a person was a teacher prior to the date when the Act came into force, his relative will not be disqualified even if he is elected after the coming into force of the Act. While interpreting a statute, we must have regard to the substance of the matter and hypertechnical considerations should be ruled out. Then again, the interpretation should, as far as possible, further the object of the statute. The mere circumstance that section 39 uses a verb in the present tense, namely, "accepts", will not justify the conclusion that the section will apply to those cases only wherein the remuneration is accepted by the teacher for the first time after the Act came into force. The section, on its terms, must apply even to those cases in which a teacher has been accepting remuneration prior to the date on which the Act came into force, with the result that the relative of such a teacher cannot be chosen as a member of the management of the college. The judgment dated August 12, 198 1 rendered by a Division Bench of the Allahabad High Court in Civil Misc. Writ No. 8647 of 1980 which takes the view that section 39 is prospective in operation in the sense projected by the learned counsel for the appellants is, with respect, notare informed by Shri Kacker that a Division Bench of the Allahabad High Court has taken a view of the proviso to section 39 contrary to that of Ojha J. Counsel urges that the Vice-Chancellor and Chancellor of the University were bound by the ruling of the Division Bench. We are not sure that there is any contrary judgment of the High Court on the interpretation of the Proviso. If there is any such judgment, it is not good law.For these reasons we dismiss the appeal. Parties will bear their own costs We hope that the vacancy caused by the disqualification incurred by appellant 3, Shri J.D. Singhal, will be filled at an early date in accordance with the provisions of the Act and the Statutes. | 0 | 1,925 | 409 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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room for doubt that he is disqualified from being chosen as a member of the Management of the Meerut College, because his brother receives remuneration for the work done by him as a Lecturer in the Law Department of the College.Shri S.N. Kacker, who appears on behalf of the appellants, relies on the Proviso to section 39 and argues that cases in which remuneration is accepted by a relative in his capacity as a teacher are exempted from the operation of section 39 and since, Appellant 3s brother accepts remuneration from the college for the work which he does as a teacher in that College. Appellant 3 is not disqualified for being chosen as a member of the Management of the College. This submission is only superficially attractive. By reason of the Proviso, the disqualification provided for by section 39 will not apply "to the acceptance of any remuneration by a teacher as such". What the proviso means is that a teacher shall not be disqualified for being chosen as a member of the Management of the College for the reason that he accepts remuneration from the College in his capacity as a teacher. The object of the proviso is to enable the teachers of a college to become members of the Management of the college The exception carved out by the proviso cannot apply to cases like the present one in which the person elected to the Executive Committee of the college is not himself a teacher but whose relative is a teacher. Teachers are saved from the disqualification, not their relatives. In this case, Appellant 3s brother will not incur the disqualification merely because he accepts remuneration as a teacher. He is protected by the Proviso. The disqualification is incurred by Appellant 3 because his brother, who is a teacher, accepts remuneration for the work done by him for the College. Appellant 3 is not protected by the proviso.4. The proviso, thus interpreted, will give meaning to the provisions of Statute 13.05 of the Meerut University First Statutes, 1977, which were Published by a Notification dated April 20, 1977. Those statutes were framed by the Government of U.P. in exercise of the powers conferred by sub-section (1) of section 50 of the Act. Statute 13.05 provides by clause (b) that the constitution of the Management of every college shall provide that "Twenty-five per-centum of the members of the Management are teachers (including the Principal)". The Statutes were framed after the Act was passed and must reasonably be assumed to have been framed in furtherance of the provisions of the Act. The object of the proviso to section 39 is to exclude teachers as a class from the operation of the provision under which persons, who accept remuneration for the work done for a college, are disqualified from being chosen as members of the Management of that college. Clause (b) of Statute 13.05 effectuates that purpose by providing that 25 percent of the members of the Management of a college shall be teachers. Recent reforms in the sphere of education lay considerable emphasis on the association of teachers with the management of institutions whose success depends largely upon their performance. That is why the proviso to section 39 gives protection to the teachers and Statute 13.05 makes it obligatory that 25 percent of the members of Management of a College shall be teachers. Granting protection to relatives of teachers, as canvassed by the appellants, is foreign to the very object of the proviso. Teachers can and ought to be on the management bodies of educational institutions. Their relatives are disqualified from being so chosen or appointed, the reason being that such relatives should not become a handy medium for distributing favours and patronage to the teachers.We find that by a judgment dated August 26, 1981 given in Civil Misc. Writ No. 11147 of 1980, N D. Ojha, J. of the Allahabad High Court has taken the same view as we have, of the proviso to s.39. We affirm that view.5. We do not also see any substance in the appellants submission that section 39 of the Act is prospective in its operation in the sense that if a person was a teacher prior to the date when the Act came into force, his relative will not be disqualified even if he is elected after the coming into force of the Act. While interpreting a statute, we must have regard to the substance of the matter and hypertechnical considerations should be ruled out. Then again, the interpretation should, as far as possible, further the object of the statute. The mere circumstance that section 39 uses a verb in the present tense, namely, "accepts", will not justify the conclusion that the section will apply to those cases only wherein the remuneration is accepted by the teacher for the first time after the Act came into force. The section, on its terms, must apply even to those cases in which a teacher has been accepting remuneration prior to the date on which the Act came into force, with the result that the relative of such a teacher cannot be chosen as a member of the management of the college. The judgment dated August 12, 198 1 rendered by a Division Bench of the Allahabad High Court in Civil Misc. Writ No. 8647 of 1980 which takes the view that section 39 is prospective in operation in the sense projected by the learned counsel for the appellants is, with respect, not correct.6. We are informed by Shri Kacker that a Division Bench of the Allahabad High Court has taken a view of the proviso to section 39 contrary to that of Ojha J. Counsel urges that the Vice-Chancellor and Chancellor of the University were bound by the ruling of the Division Bench. We are not sure that there is any contrary judgment of the High Court on the interpretation of the Proviso. If there is any such judgment, it is not good law.Fo
### Response:
0
### Explanation:
We do not also see any substance in the appellants submission that section 39 of the Act is prospective in its operation in the sense that if a person was a teacher prior to the date when the Act came into force, his relative will not be disqualified even if he is elected after the coming into force of the Act. While interpreting a statute, we must have regard to the substance of the matter and hypertechnical considerations should be ruled out. Then again, the interpretation should, as far as possible, further the object of the statute. The mere circumstance that section 39 uses a verb in the present tense, namely, "accepts", will not justify the conclusion that the section will apply to those cases only wherein the remuneration is accepted by the teacher for the first time after the Act came into force. The section, on its terms, must apply even to those cases in which a teacher has been accepting remuneration prior to the date on which the Act came into force, with the result that the relative of such a teacher cannot be chosen as a member of the management of the college. The judgment dated August 12, 198 1 rendered by a Division Bench of the Allahabad High Court in Civil Misc. Writ No. 8647 of 1980 which takes the view that section 39 is prospective in operation in the sense projected by the learned counsel for the appellants is, with respect, notare informed by Shri Kacker that a Division Bench of the Allahabad High Court has taken a view of the proviso to section 39 contrary to that of Ojha J. Counsel urges that the Vice-Chancellor and Chancellor of the University were bound by the ruling of the Division Bench. We are not sure that there is any contrary judgment of the High Court on the interpretation of the Proviso. If there is any such judgment, it is not good law.For these reasons we dismiss the appeal. Parties will bear their own costs We hope that the vacancy caused by the disqualification incurred by appellant 3, Shri J.D. Singhal, will be filled at an early date in accordance with the provisions of the Act and the Statutes.
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M/S.Indseam Services Ltd Vs. Bimal Kumar Kejriwal (Huf) | Section 420 IPC and the Magistrate passed the order in view of such direction it will not be proper for the High Court to hold otherwise. The relevant portion of the order reads as follows : "It appears that the learned Magistrate took cognizace of the offence under Sections 420/120B of the Indian Penal Code and issued process against the accused persons in view of the direction given by this Court. In my considered opinion when there is a specific direction from this Court directing the learned Magistrate to take cognizance of the offence under Section 420 IPC, it will not be proper for this Court to hold otherwise. In view of the discussions made above I think it will not be proper for this Court to pass any further order or to go into the merit of the case in view of the judgment delivered by Justice Tiwari. This Court cannot sit on appeal over the judgment and order passed by a co-ordinate Bench of this Court. The revisional application is accordingly dismised. However, liberty is granted to the petitioner to agitate all the points, which he has taken before this Court in this revisional application before the trial Court at the appropriate stage of the proceedings." 6. Shri Rakesh Dwivedi, learned senior counsel appearing for the appellant raised the contention that on reading the complaint petition and accepting the averments made therein as correct, no prima facie case for the offence of cheating punishable under Section 420 IPC is made out; that the averments made in the complaint petition do not show that the element of deceit on the part of the accused persons were present when the parties entered into the contract, that the transactions between the parties and liability of the appellant thereunder, if any, are of civil nature and criminal prosecution in such a case is a means of harassing the accused persons and gives rise to abuse of the process of Court. Shri Dwivedi also contended that the learned Magistrate passed the cognizance order without holding any enquiry despite the specific direction of the High Court. Per contra, Shri D.A. Dave, learned senior counsel appearing for the respondent contended that the ingredients of the offence of cheating punishable under Section 420 IPC are made out on the averments in the complaint petition and therefore the learned Magistrate was right in passing the order taking cognizance of the offence under Section 420 IPC and the High Court rightly dismissed the Revision Petition filed by the appellant. Shri Dave further contended that the complainant had entered into the contract with the accused persons and parted with substantial sum of money (rupees eighty lakhs) on the basis of the three cheques issued by the latter in his favour which were returned by the Bank on the instructions issued by the accused persons. Referring to illustration (f) of Section 415 IPC Sri Dave submitted that on the averments made in the complaint petition the ingredients of the offence are satisfied. 7. On perusal of the order under challenge it is clear that the learned Single Judge disposed of the revision petition filed by the appellant for setting aside the cognizance order and for quashing the criminal proceeding without entering into the merits of the case. The learned Single Judge did not consider the nature of the contract between the parties, the arrangement for payment of dues by the accused persons to the complainant, nor did he record a finding that the ingredients of the offence of cheating defined under Section 415 IPC were prima facie made out from the averments in the complaint petition and the statement on oath by the complainant before the learned Magistrate. The learned Single Judge felt bound by the observations made in the order passed on 21st March, 1997 in which another single Judge (Justice S.K. Tiwari) while accepting the position that the Magistrate rightly did not take cognizance of the offence under Sections 138/141 Negotiable Instruments Act had observed that the learned Magistrate should have taken cognizance of the offence punishable under Section 420 IPC. From the order under challenge it is manifest that the learned Single Judge did not pay due attention to the part of the order in which the learned Magistrate was directed to hold further enquiry into the complaint. While judging the question whether the cognizance order passed by the learned Magistrate was sustainable in law it was incumbent for the learned Single Judge to go into the question whether the complainant has been able to make out a prima facie case for the offence of cheating on the averments in the complaint petition and his statement on oath. The matter should have been examined in the light of the contentions raised by the accused applicant in the revision petition and finding recorded. The learned Single Judge also did not consider whether the learned Magistrate held any further enquiry before passing the cognizance order; whether the dispute raised in the case is of civil nature and continuing the criminal proceeding will give to abuse of the process of court. 8. We are constrained to observe that there has been an avoidance of the function of judicial determination of the question of acceptability or otherwise of the plea raised by the accused persons for setting aside the cognizance order and for quashing the criminal proceedings merely on the ground that on the previous occasion the single Judge had made an observation that cognizance should have been taken under Section 420 IPC, ignoring the further direction given in that order of the Magistrate to hold enquiry into the complaint. 9. For the reasons discussed in the foregoing paragraphs, the order under challenge being unsustainable has to be set aside and the matter is remitted to the High Court for fresh consideration. Since we are remitting the matter of the High Court for fresh consideration we do not deem it proper to make any observation on the merits of the case. | 1[ds]7. On perusal of the order under challenge it is clear that the learned Single Judge disposed of the revision petition filed by the appellant for setting aside the cognizance order and for quashing the criminal proceeding without entering into the merits of thethe order under challenge it is manifest that the learned Single Judge did not pay due attention to the part of the order in which the learned Magistrate was directed to hold further enquiry into the complaint. While judging the question whether the cognizance order passed by the learned Magistrate was sustainable in law it was incumbent for the learned Single Judge to go into the question whether the complainant has been able to make out a prima facie case for the offence of cheating on the averments in the complaint petition and his statement on oath. The matter should have been examined in the light of the contentions raised by the accused applicant in the revision petition and finding recorded. The learned Single Judge also did not consider whether the learned Magistrate held any further enquiry before passing the cognizance order; whether the dispute raised in the case is of civil nature and continuing the criminal proceeding will give to abuse of the process of court.We are constrained to observe that there has been an avoidance of the function of judicial determination of the question of acceptability or otherwise of the plea raised by the accused persons for setting aside the cognizance order and for quashing the criminal proceedings merely on the ground that on the previous occasion the single Judge had made an observation that cognizance should have been taken under Section 420 IPC, ignoring the further direction given in that order of the Magistrate to hold enquiry into the complaint. 9. For the reasons discussed in the foregoing paragraphs, the order under challenge being unsustainable has to be set aside and the matter is remitted to the High Court for fresh consideration. Since we are remitting the matter of the High Court for fresh consideration we do not deem it proper to make any observation on the merits of the case. | 1 | 1,582 | 372 | ### 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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Section 420 IPC and the Magistrate passed the order in view of such direction it will not be proper for the High Court to hold otherwise. The relevant portion of the order reads as follows : "It appears that the learned Magistrate took cognizace of the offence under Sections 420/120B of the Indian Penal Code and issued process against the accused persons in view of the direction given by this Court. In my considered opinion when there is a specific direction from this Court directing the learned Magistrate to take cognizance of the offence under Section 420 IPC, it will not be proper for this Court to hold otherwise. In view of the discussions made above I think it will not be proper for this Court to pass any further order or to go into the merit of the case in view of the judgment delivered by Justice Tiwari. This Court cannot sit on appeal over the judgment and order passed by a co-ordinate Bench of this Court. The revisional application is accordingly dismised. However, liberty is granted to the petitioner to agitate all the points, which he has taken before this Court in this revisional application before the trial Court at the appropriate stage of the proceedings." 6. Shri Rakesh Dwivedi, learned senior counsel appearing for the appellant raised the contention that on reading the complaint petition and accepting the averments made therein as correct, no prima facie case for the offence of cheating punishable under Section 420 IPC is made out; that the averments made in the complaint petition do not show that the element of deceit on the part of the accused persons were present when the parties entered into the contract, that the transactions between the parties and liability of the appellant thereunder, if any, are of civil nature and criminal prosecution in such a case is a means of harassing the accused persons and gives rise to abuse of the process of Court. Shri Dwivedi also contended that the learned Magistrate passed the cognizance order without holding any enquiry despite the specific direction of the High Court. Per contra, Shri D.A. Dave, learned senior counsel appearing for the respondent contended that the ingredients of the offence of cheating punishable under Section 420 IPC are made out on the averments in the complaint petition and therefore the learned Magistrate was right in passing the order taking cognizance of the offence under Section 420 IPC and the High Court rightly dismissed the Revision Petition filed by the appellant. Shri Dave further contended that the complainant had entered into the contract with the accused persons and parted with substantial sum of money (rupees eighty lakhs) on the basis of the three cheques issued by the latter in his favour which were returned by the Bank on the instructions issued by the accused persons. Referring to illustration (f) of Section 415 IPC Sri Dave submitted that on the averments made in the complaint petition the ingredients of the offence are satisfied. 7. On perusal of the order under challenge it is clear that the learned Single Judge disposed of the revision petition filed by the appellant for setting aside the cognizance order and for quashing the criminal proceeding without entering into the merits of the case. The learned Single Judge did not consider the nature of the contract between the parties, the arrangement for payment of dues by the accused persons to the complainant, nor did he record a finding that the ingredients of the offence of cheating defined under Section 415 IPC were prima facie made out from the averments in the complaint petition and the statement on oath by the complainant before the learned Magistrate. The learned Single Judge felt bound by the observations made in the order passed on 21st March, 1997 in which another single Judge (Justice S.K. Tiwari) while accepting the position that the Magistrate rightly did not take cognizance of the offence under Sections 138/141 Negotiable Instruments Act had observed that the learned Magistrate should have taken cognizance of the offence punishable under Section 420 IPC. From the order under challenge it is manifest that the learned Single Judge did not pay due attention to the part of the order in which the learned Magistrate was directed to hold further enquiry into the complaint. While judging the question whether the cognizance order passed by the learned Magistrate was sustainable in law it was incumbent for the learned Single Judge to go into the question whether the complainant has been able to make out a prima facie case for the offence of cheating on the averments in the complaint petition and his statement on oath. The matter should have been examined in the light of the contentions raised by the accused applicant in the revision petition and finding recorded. The learned Single Judge also did not consider whether the learned Magistrate held any further enquiry before passing the cognizance order; whether the dispute raised in the case is of civil nature and continuing the criminal proceeding will give to abuse of the process of court. 8. We are constrained to observe that there has been an avoidance of the function of judicial determination of the question of acceptability or otherwise of the plea raised by the accused persons for setting aside the cognizance order and for quashing the criminal proceedings merely on the ground that on the previous occasion the single Judge had made an observation that cognizance should have been taken under Section 420 IPC, ignoring the further direction given in that order of the Magistrate to hold enquiry into the complaint. 9. For the reasons discussed in the foregoing paragraphs, the order under challenge being unsustainable has to be set aside and the matter is remitted to the High Court for fresh consideration. Since we are remitting the matter of the High Court for fresh consideration we do not deem it proper to make any observation on the merits of the case.
### Response:
1
### Explanation:
7. On perusal of the order under challenge it is clear that the learned Single Judge disposed of the revision petition filed by the appellant for setting aside the cognizance order and for quashing the criminal proceeding without entering into the merits of thethe order under challenge it is manifest that the learned Single Judge did not pay due attention to the part of the order in which the learned Magistrate was directed to hold further enquiry into the complaint. While judging the question whether the cognizance order passed by the learned Magistrate was sustainable in law it was incumbent for the learned Single Judge to go into the question whether the complainant has been able to make out a prima facie case for the offence of cheating on the averments in the complaint petition and his statement on oath. The matter should have been examined in the light of the contentions raised by the accused applicant in the revision petition and finding recorded. The learned Single Judge also did not consider whether the learned Magistrate held any further enquiry before passing the cognizance order; whether the dispute raised in the case is of civil nature and continuing the criminal proceeding will give to abuse of the process of court.We are constrained to observe that there has been an avoidance of the function of judicial determination of the question of acceptability or otherwise of the plea raised by the accused persons for setting aside the cognizance order and for quashing the criminal proceedings merely on the ground that on the previous occasion the single Judge had made an observation that cognizance should have been taken under Section 420 IPC, ignoring the further direction given in that order of the Magistrate to hold enquiry into the complaint. 9. For the reasons discussed in the foregoing paragraphs, the order under challenge being unsustainable has to be set aside and the matter is remitted to the High Court for fresh consideration. Since we are remitting the matter of the High Court for fresh consideration we do not deem it proper to make any observation on the merits of the case.
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Dharangadhra Chemical Works Ltd. and Ors Vs. Union of India (UOI) and Ors | 1. Special leave granted in SLPs. 2. These appeals raise a common question of law and hence they are disposed of by this order. 3. The appellant-Company manufactures Trichloroethylene as the end product at its factory situate in Sahupuram (Tamil Nadu). In the process of manufacture of the said product Acetylene gas emerges. This Acetylene gas is in a crude form and is used by the assessee in the manufacture of the end product. The question is whether this Acetylene gas is liable to excise duty under Tariff Item 14H(vi). One of the contentions raised by the assessee was that this gas in the crude form was not marketable or capable of being marketed and, therefore, the assessee was not liable to pay excise duty thereon. The view taken is that since it is shown at Item (vi) at Entry 14H of the Central Excise Tariff no further inquiry is necessary and the same is liable to duty is excisable goods. The assessee had raised the contention that the said gas was not marketable in the crude form in which it was used for captive consumption and unless it was further treated by dissolving ice acetone and then being compressed it could not be taken to the market for sale. Unfortunately, this contention of the assessee was not examined by the Central Government as well as the CEGAT in these two cases. This Court has in a recent judgment in Moti Laminates Pvt. Ltd. and Ors. v. Collector of Central Excise, Ahmedabad 1995ECR1(SC) clearly held that goods although covered by a Tariff Item, unless marketable or capable of being marketed, are not exigible to excise duty. It was, therefore, essential for the authorities below to record a clear finding on the question whether the Acetylene gas in the form in which it emerges and is used for captive consumption is marketable or capable of being marketed. Since there is no positive finding on this issue, we are left with no alternative but to remit the matters to the CEGAT for recording a finding on the said issue. We may state that no other question was raised before us by the learned Counsel for the assessee nor will the Tribunal be required to go into any other question. The learned ASG appearing for the Revenue also fairly stated that he too did not see a definite finding on this issue recorded by the Central Government or the Tribunal. | 1[ds]Unfortunately, this contention of the assessee was not examined by the Central Government as well as the CEGAT in these two cases. This Court has in a recent judgment in Moti Laminates Pvt. Ltd. and Ors. v. Collector of Central Excise, Ahmedabad 1995ECR1(SC) clearly held that goods although covered by a Tariff Item, unless marketable or capable of being marketed, are not exigible to excise duty. It was, therefore, essential for the authorities below to record a clear finding on the question whether the Acetylene gas in the form in which it emerges and is used for captive consumption is marketable or capable of being marketed. Since there is no positive finding on this issue, we are left with no alternative but to remit the matters to the CEGAT for recording a finding on the said issue. We may state that no other question was raised before us by the learned Counsel for the assessee nor will the Tribunal be required to go into any other question. | 1 | 446 | 188 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
1. Special leave granted in SLPs. 2. These appeals raise a common question of law and hence they are disposed of by this order. 3. The appellant-Company manufactures Trichloroethylene as the end product at its factory situate in Sahupuram (Tamil Nadu). In the process of manufacture of the said product Acetylene gas emerges. This Acetylene gas is in a crude form and is used by the assessee in the manufacture of the end product. The question is whether this Acetylene gas is liable to excise duty under Tariff Item 14H(vi). One of the contentions raised by the assessee was that this gas in the crude form was not marketable or capable of being marketed and, therefore, the assessee was not liable to pay excise duty thereon. The view taken is that since it is shown at Item (vi) at Entry 14H of the Central Excise Tariff no further inquiry is necessary and the same is liable to duty is excisable goods. The assessee had raised the contention that the said gas was not marketable in the crude form in which it was used for captive consumption and unless it was further treated by dissolving ice acetone and then being compressed it could not be taken to the market for sale. Unfortunately, this contention of the assessee was not examined by the Central Government as well as the CEGAT in these two cases. This Court has in a recent judgment in Moti Laminates Pvt. Ltd. and Ors. v. Collector of Central Excise, Ahmedabad 1995ECR1(SC) clearly held that goods although covered by a Tariff Item, unless marketable or capable of being marketed, are not exigible to excise duty. It was, therefore, essential for the authorities below to record a clear finding on the question whether the Acetylene gas in the form in which it emerges and is used for captive consumption is marketable or capable of being marketed. Since there is no positive finding on this issue, we are left with no alternative but to remit the matters to the CEGAT for recording a finding on the said issue. We may state that no other question was raised before us by the learned Counsel for the assessee nor will the Tribunal be required to go into any other question. The learned ASG appearing for the Revenue also fairly stated that he too did not see a definite finding on this issue recorded by the Central Government or the Tribunal.
### Response:
1
### Explanation:
Unfortunately, this contention of the assessee was not examined by the Central Government as well as the CEGAT in these two cases. This Court has in a recent judgment in Moti Laminates Pvt. Ltd. and Ors. v. Collector of Central Excise, Ahmedabad 1995ECR1(SC) clearly held that goods although covered by a Tariff Item, unless marketable or capable of being marketed, are not exigible to excise duty. It was, therefore, essential for the authorities below to record a clear finding on the question whether the Acetylene gas in the form in which it emerges and is used for captive consumption is marketable or capable of being marketed. Since there is no positive finding on this issue, we are left with no alternative but to remit the matters to the CEGAT for recording a finding on the said issue. We may state that no other question was raised before us by the learned Counsel for the assessee nor will the Tribunal be required to go into any other question.
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Commissioner of Income Tax, Lucknow Vs. Madho Pd. Jatia | the Act makes provision for computation of income from property on a notional basis. According to this section, the income shall be taken to be the bona fide annual value of the property. In making the computation, certain allowances which are mentioned in section 9 would have to be deducted. In case the property in question was in occupation of a tenant, the taxing authorities have, while computing the income from that property, to take: into account its bona fide annual value. The questions to whether the tenant who was in occupation of the property has, . in fact, paid the rent or not would not enter into consideration at that stage, unless it be found that the rent due from the tenant has become irrecoverable. The fact that the rent due from the tenant has become irrecoverable would in a majority of cases be known only in subsequent years and not in the year during which the tenant has remained in occupation. None of the clauses dealing with allowances which are permissible under section 9 (1) of the Act deal with rent due from a tenant which remains irrecoverable. It was to meet such an eventuality that exemption was granted as per item No. 38 in notification No. 878F dated March 21, 1922. Item 38 exempts from payment of tax such p art of the income in respect of which tax is payable under the head property as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irrecoverable. In order to claim the benefit of the above exemption, the assessee has also to show that the requirements of clause (a) to (e) of item 38 have been satisfied. It was not disputed before the High Court that condition s mentioned in clauses (a) to (e) of item No. 38 had been fulfilled in the instant case. The dispute between the parties centres on the point as to whether in the event of the amount of the irrecoverable rent being more than t he amount of rent payable for a year, the assessee can claim the deduction only in one year equal to the amount of rent payable for a year, or whether the assessee can claim deductions for the balance of the irrecoverable rent in subsequent years also. In other words, the question is whether in the event of the amount of irrecoverable rent being more than the amount of the rent payable for a year of the property, the assessee can claim the benefit of the exemption mentioned in item 38 only once or whether the assessee can claim the benefit of that exemption in successive years also till such time as. the assessee gets relief in respect of the whole of the amount of irrecoverable rent. Both the Tribunal and the High Court took the view that it would be permissible to claim the benefit of the exemption in successive years. After hearing the learned counsel for the parties, we find no cogent ground to take a different view.The language of item 38 which has been reproduced above shows that if other conditions. are satisfied, the deduction which can be claimed by the assessee at an assessment cannot exceed the amount of rent payable for a year. The item thus places a limit in respect of the deduction which is permissible in an assessment for one year. In case, however, the amount of irrecoverable rent exceeds the amount of rent payable for a year, the right of the assessee to claim the benefit of the above exemption does not, in our opinion, get exhausted by his having claimed exemption in one year. We land no cogent reason as to why the assessee should become disentitled to claim the benefit of the above exemption in respect of the balance of the irrecoverable rent in subsequent years subject to the condition that in no year the deduction would exceed the amount of rent payable: for a year. the assessee, it has to be borne in mind, seeks exemption in respect of the notional rental income which he, in fact, never received but on which he had in terms of section 9 of the Act to pay tax. The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction under the head property in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax. Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once. There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent, no relief is permissible even though tax on that balance amount too has been paid by the assessee. It is well settled that there is no equity about tax. if the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity. Where however the provisions are couched in language which is not free from ambiguity and admits of two interpretations, a view which is favourable to the subject should be adopted. The fact that such an interpretation is also in consonance with ordinary notions of equity would further fortify the court in adopting such a course.Mr. Sharma has invited our attention to the judgment of the Punjab High Court in the case of Daljit Singh v Commissioner of Income-tax Delhi (521. T.R. 933.) wherein the Punjab High Court took a different view. For the reasons stated above, we prefer the view taken by the Allahabad High Court in the judgment under appeal to that of the Punjab High Court in Daljit Singhs case.5. | 0[ds]We land no cogent reason as to why the assessee should become disentitled to claim the benefit of the above exemption in respect of the balance of the irrecoverable rent in subsequent years subject to the condition that in no year the deduction would exceed the amount of rent payable: for a year. the assessee, it has to be borne in mind, seeks exemption in respect of the notional rental income which he, in fact, never received but on which he had in terms of section 9 of the Act to pay tax. The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction under the head property in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax. Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once. There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent, no relief is permissible even though tax on that balance amount too has been paid by the assessee. It is well settled that there is no equity about tax. if the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity. Where however the provisions are couched in language which is not free from ambiguity and admits of two interpretations, a view which is favourable to the subject should be adopted. The fact that such an interpretation is also in consonance with ordinary notions of equity would further fortify the court in adopting such a course.Mr. Sharma has invited our attention to the judgment of the Punjab High Court in the case of Daljit Singh v Commissioner of Income-tax Delhi (521. T.R. 933.) wherein the Punjab High Court took a different view. For the reasons stated above, we prefer the view taken by the Allahabad High Court in the judgment under appeal to that of the Punjab High Court in Daljit Singhs case. | 0 | 2,241 | 409 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the Act makes provision for computation of income from property on a notional basis. According to this section, the income shall be taken to be the bona fide annual value of the property. In making the computation, certain allowances which are mentioned in section 9 would have to be deducted. In case the property in question was in occupation of a tenant, the taxing authorities have, while computing the income from that property, to take: into account its bona fide annual value. The questions to whether the tenant who was in occupation of the property has, . in fact, paid the rent or not would not enter into consideration at that stage, unless it be found that the rent due from the tenant has become irrecoverable. The fact that the rent due from the tenant has become irrecoverable would in a majority of cases be known only in subsequent years and not in the year during which the tenant has remained in occupation. None of the clauses dealing with allowances which are permissible under section 9 (1) of the Act deal with rent due from a tenant which remains irrecoverable. It was to meet such an eventuality that exemption was granted as per item No. 38 in notification No. 878F dated March 21, 1922. Item 38 exempts from payment of tax such p art of the income in respect of which tax is payable under the head property as is equal to the amount of rent payable for a year but not paid by a tenant of the assessee and so proved to be lost and irrecoverable. In order to claim the benefit of the above exemption, the assessee has also to show that the requirements of clause (a) to (e) of item 38 have been satisfied. It was not disputed before the High Court that condition s mentioned in clauses (a) to (e) of item No. 38 had been fulfilled in the instant case. The dispute between the parties centres on the point as to whether in the event of the amount of the irrecoverable rent being more than t he amount of rent payable for a year, the assessee can claim the deduction only in one year equal to the amount of rent payable for a year, or whether the assessee can claim deductions for the balance of the irrecoverable rent in subsequent years also. In other words, the question is whether in the event of the amount of irrecoverable rent being more than the amount of the rent payable for a year of the property, the assessee can claim the benefit of the exemption mentioned in item 38 only once or whether the assessee can claim the benefit of that exemption in successive years also till such time as. the assessee gets relief in respect of the whole of the amount of irrecoverable rent. Both the Tribunal and the High Court took the view that it would be permissible to claim the benefit of the exemption in successive years. After hearing the learned counsel for the parties, we find no cogent ground to take a different view.The language of item 38 which has been reproduced above shows that if other conditions. are satisfied, the deduction which can be claimed by the assessee at an assessment cannot exceed the amount of rent payable for a year. The item thus places a limit in respect of the deduction which is permissible in an assessment for one year. In case, however, the amount of irrecoverable rent exceeds the amount of rent payable for a year, the right of the assessee to claim the benefit of the above exemption does not, in our opinion, get exhausted by his having claimed exemption in one year. We land no cogent reason as to why the assessee should become disentitled to claim the benefit of the above exemption in respect of the balance of the irrecoverable rent in subsequent years subject to the condition that in no year the deduction would exceed the amount of rent payable: for a year. the assessee, it has to be borne in mind, seeks exemption in respect of the notional rental income which he, in fact, never received but on which he had in terms of section 9 of the Act to pay tax. The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction under the head property in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax. Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once. There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent, no relief is permissible even though tax on that balance amount too has been paid by the assessee. It is well settled that there is no equity about tax. if the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity. Where however the provisions are couched in language which is not free from ambiguity and admits of two interpretations, a view which is favourable to the subject should be adopted. The fact that such an interpretation is also in consonance with ordinary notions of equity would further fortify the court in adopting such a course.Mr. Sharma has invited our attention to the judgment of the Punjab High Court in the case of Daljit Singh v Commissioner of Income-tax Delhi (521. T.R. 933.) wherein the Punjab High Court took a different view. For the reasons stated above, we prefer the view taken by the Allahabad High Court in the judgment under appeal to that of the Punjab High Court in Daljit Singhs case.5.
### Response:
0
### Explanation:
We land no cogent reason as to why the assessee should become disentitled to claim the benefit of the above exemption in respect of the balance of the irrecoverable rent in subsequent years subject to the condition that in no year the deduction would exceed the amount of rent payable: for a year. the assessee, it has to be borne in mind, seeks exemption in respect of the notional rental income which he, in fact, never received but on which he had in terms of section 9 of the Act to pay tax. The underlying object of the exemption granted by item 38 is that the assessee shall be entitled to claim deduction under the head property in respect of the notional rental income which, it subsequently so transpires, was never received by him but on which he had to pay tax. Although item 38 fixes the limit of deduction which is permissible in one year, there is nothing in the language of that item to warrant the inference that the benefit of the exemption can be claimed only once. There is also nothing in the language of that item to indicate that in respect of the balance of the irrecoverable rent, no relief is permissible even though tax on that balance amount too has been paid by the assessee. It is well settled that there is no equity about tax. if the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity. Where however the provisions are couched in language which is not free from ambiguity and admits of two interpretations, a view which is favourable to the subject should be adopted. The fact that such an interpretation is also in consonance with ordinary notions of equity would further fortify the court in adopting such a course.Mr. Sharma has invited our attention to the judgment of the Punjab High Court in the case of Daljit Singh v Commissioner of Income-tax Delhi (521. T.R. 933.) wherein the Punjab High Court took a different view. For the reasons stated above, we prefer the view taken by the Allahabad High Court in the judgment under appeal to that of the Punjab High Court in Daljit Singhs case.
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New India Assurance Company Ltd Vs. Shanti Pathak | Dr. Arijit Pasayat, J. Civil Appeal Nos.2926-2927 of 2007 (Arising out of SLP (C.) Nos.20101-02 OF 2005) 1. Leave granted. 2. Challenge in this appeals is to the legality of the judgment rendered by a Division Bench of Uttranchal High Court dismissing the appeal filed before it under Section 173 of the Motor Vehicles Act, 1988 (in short the Act). The Motor Accidents Claims Tribunal/Addl. District Judge, F.T.C. Nainital (hereinafter referred to as the tribunal) awarded a sum of Rs.4,10,000/- in favor of the respondents 1 and 2 (hereinafter referred to as the claimants). 3. The background facts which are almost undisputed essentially are as follows: 4. On 11.11.2002 Hem Pathak (hereinafter referred to as the deceased) who was at the relevant point of time 25 years of age lost his life in a vehicular accident. He was traveling in Jeep No.UP 03/0805. The said jeep had a collision with truck bearing No.UP 20A-8491. Since the truck was the subject matter of insurance, the parents of the deceased filed a Claim Petition. The Tribunal as noted above awarded Rs.4,10,000/-. Since the age of the deceased was 25 years, multiplier of 17 was applied. The Tribunal referred to various decisions of this Court for quantifying the amount as Rs.4,10,000/-. 5. Before the High Court it was contended by the appellant that the multiplier to be adopted is to be determined on the age of the claimants and not on the age of the deceased, which was to be taken as the basis for working out the compensation. The High Court did not find any substance in this plea. It was held that no permission had been granted to the insurer to contest its claim. It was submitted that it is a clear case of contributory negligence and the quantum of compensation should be suitably divided. The High Court did not find any substance in this plea also. 6. In support of the appeal, learned counsel for the appellant submitted that both the trial Court and the High Court failed to notice the age of the claimants which was relevant and not the age of the deceased. 7. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/-. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/- as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/-. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due.8. The appeal is disposed of accordingly with no order as to costs.(With C.A.No2928/07 @ SLP (C) No.3957 of 2006) 9. In the instant case the age of the deceased was 52 years as per the post mortem report, and the multiplier thus has to be 8 instead of 13 as adopted by the Tribunal and upheld by the High Court. The rate of interest awarded does not need any interference. The monthly income has to be taken as Rs. 11,684/- and one-third has to be deducted therefrom for personal expenses. Thus, the annual loss of income comes to Rs.93,939/-. The same is rounded to Rs.93,000/-. The entitlement for loss of income comes to Rs.7,44,000/-. The other amounts awarded by the Tribunal totaling Rs.29,500/- remain unaltered. Thus the claimant is entitled to Rs.7,73,500 along with interest at the rate fixed by the Tribunal. The payment already made shall be adjusted. 10. | 1[ds]7. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/-. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/- as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/-. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due.8. The appeal is disposed of accordingly with no order as to costs.(With C.A.No2928/07 @ SLP (C) No.3957 ofthe instant case the age of the deceased was 52 years as per the post mortem report, and the multiplier thus has to be 8 instead of 13 as adopted by the Tribunal and upheld by the High Court. The rate of interest awarded does not need any interference. The monthly income has to be taken as Rs. 11,684/- and one-third has to be deducted therefrom for personal expenses. Thus, the annual loss of income comes to Rs.93,939/-. The same is rounded to Rs.93,000/-. The entitlement for loss of income comes to Rs.7,44,000/-. The other amounts awarded by the Tribunal totaling Rs.29,500/- remain unaltered. Thus the claimant is entitled to Rs.7,73,500 along with interest at the rate fixed by the Tribunal. The payment already made shall be adjusted. | 1 | 731 | 327 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Dr. Arijit Pasayat, J. Civil Appeal Nos.2926-2927 of 2007 (Arising out of SLP (C.) Nos.20101-02 OF 2005) 1. Leave granted. 2. Challenge in this appeals is to the legality of the judgment rendered by a Division Bench of Uttranchal High Court dismissing the appeal filed before it under Section 173 of the Motor Vehicles Act, 1988 (in short the Act). The Motor Accidents Claims Tribunal/Addl. District Judge, F.T.C. Nainital (hereinafter referred to as the tribunal) awarded a sum of Rs.4,10,000/- in favor of the respondents 1 and 2 (hereinafter referred to as the claimants). 3. The background facts which are almost undisputed essentially are as follows: 4. On 11.11.2002 Hem Pathak (hereinafter referred to as the deceased) who was at the relevant point of time 25 years of age lost his life in a vehicular accident. He was traveling in Jeep No.UP 03/0805. The said jeep had a collision with truck bearing No.UP 20A-8491. Since the truck was the subject matter of insurance, the parents of the deceased filed a Claim Petition. The Tribunal as noted above awarded Rs.4,10,000/-. Since the age of the deceased was 25 years, multiplier of 17 was applied. The Tribunal referred to various decisions of this Court for quantifying the amount as Rs.4,10,000/-. 5. Before the High Court it was contended by the appellant that the multiplier to be adopted is to be determined on the age of the claimants and not on the age of the deceased, which was to be taken as the basis for working out the compensation. The High Court did not find any substance in this plea. It was held that no permission had been granted to the insurer to contest its claim. It was submitted that it is a clear case of contributory negligence and the quantum of compensation should be suitably divided. The High Court did not find any substance in this plea also. 6. In support of the appeal, learned counsel for the appellant submitted that both the trial Court and the High Court failed to notice the age of the claimants which was relevant and not the age of the deceased. 7. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/-. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/- as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/-. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due.8. The appeal is disposed of accordingly with no order as to costs.(With C.A.No2928/07 @ SLP (C) No.3957 of 2006) 9. In the instant case the age of the deceased was 52 years as per the post mortem report, and the multiplier thus has to be 8 instead of 13 as adopted by the Tribunal and upheld by the High Court. The rate of interest awarded does not need any interference. The monthly income has to be taken as Rs. 11,684/- and one-third has to be deducted therefrom for personal expenses. Thus, the annual loss of income comes to Rs.93,939/-. The same is rounded to Rs.93,000/-. The entitlement for loss of income comes to Rs.7,44,000/-. The other amounts awarded by the Tribunal totaling Rs.29,500/- remain unaltered. Thus the claimant is entitled to Rs.7,73,500 along with interest at the rate fixed by the Tribunal. The payment already made shall be adjusted. 10.
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7. Considering the income that was taken, the foundation for working out the compensation cannot be faulted. The monthly contribution was fixed at Rs.3,500/-. In the normal course we would have remitted the matter to the High Court for consideration on the materials placed before it. But considering the fact that the matter is pending since long, it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. Taking into account the monthly contribution at Rs.3,500/- as held by the Tribunal and the High Court, the entitlement of the claim would be Rs.2,10,000/-. The same shall bear interest @ 7.5% p.a. from the date of the application for compensation. Payment already made shall be adjusted from the amount due.8. The appeal is disposed of accordingly with no order as to costs.(With C.A.No2928/07 @ SLP (C) No.3957 ofthe instant case the age of the deceased was 52 years as per the post mortem report, and the multiplier thus has to be 8 instead of 13 as adopted by the Tribunal and upheld by the High Court. The rate of interest awarded does not need any interference. The monthly income has to be taken as Rs. 11,684/- and one-third has to be deducted therefrom for personal expenses. Thus, the annual loss of income comes to Rs.93,939/-. The same is rounded to Rs.93,000/-. The entitlement for loss of income comes to Rs.7,44,000/-. The other amounts awarded by the Tribunal totaling Rs.29,500/- remain unaltered. Thus the claimant is entitled to Rs.7,73,500 along with interest at the rate fixed by the Tribunal. The payment already made shall be adjusted.
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ZONAL MANAGER, BANK OF INDIA, ZONAL OFFICE, KOCHI Vs. AARYA K. BABU | which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Masters degree¬holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post. 27. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Masters degree¬holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline of Pure Chemistry also leads to the conclusion that the said post at that stage when it was advertised was meant to be filled up by a person belonging to Pure Chemistry stream."If the above decision is kept in perspective it is clear that while examining the correctness of the action of the employer what would be sacrosanct will be the qualification criteria published in the Notification, since if any change made to the qualification criteria midstream is accepted by the Court so as to benefit only the petitioners before it, without making it open to all the qualified persons, it would amount to causing injustice to the others who possess such qualification but had not applied being honest to themselves as knowingly they did not possess the qualification sought for in the Notification though they otherwise held another degree. Therefore, if there is any change in qualification / criteria after the notification is issued but before the completion of the selection process and the employer / recruiting agency seeks to adopt the change it will be incumbent on the employer to issue a corrigendum incorporating the changes to the notification and invite applications from those qualified as per the changed criteria and consider the same along with the applications received in response to the initial notification. The same principle will hold good when a consideration is made by the Court. 15. If in that background the instant facts are taken note, it would disclose that the Notification depicting the qualification required as Degree in B.Sc. (Agro-Forestry) was issued on 17.11.2014 and the process of selection had come to an end when the private respondents herein were issued the appointment letters dated 17.09.2015 and 29.05.2015 respectively. Admittedly as on such date the Notification required the candidates possessing B.Sc. (Agro-Forestry) but the private respondents were graduates in B.Sc. (Forestry) and as such were not qualified to respond. The change was made subsequent thereto by the general corrigendum dated 16.01.2016 by including the qualification of B.Sc. (Forestry), which would be effective from that day by providing opportunity to all those holding that qualification. Therefore, in such cases the change of qualification whereby the qualification of the private respondents gets included subsequently cannot enure to their benefit alone when several others who could have applied were prevented from doing so. 16. Further it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the decision relied upon by the learned counsel for the appellants in the case of Mohammad Shujat Ali & Ors. vs. Union of India & Ors, (1975) 3 SCC 76 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government. 17. In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside. 18. Having arrived at the above conclusion we also take note of the submission of the learned counsel for the private respondent in the appeal arising out of SLP© No.16567/2016 namely Smt. Aarya K. Babu that she is placed in a very difficult circumstances subsequent to the discharge from service which is also due to certain set back in her personal life. Though we do not wish to articulate the actual fact situation narrated we have no reason to disbelieve the same, hence, we find it appropriate that in her case it is necessary to exercise our discretion under Article 142 of the Constitution to serve the ends of justice and do complete justice without prejudicing either of the parties. | 1[ds]13. Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well-established position that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the Notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the Notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the Notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified.In fact, this view is fortified by the decision of this Court in the case of Mohd. Sohrab Khan vs. Aligarh Muslim University & Ors. (2009) 4 SCC 555 relied on by the learned counsel for thethe above decision is kept in perspective it is clear that while examining the correctness of the action of the employer what would be sacrosanct will be the qualification criteria published in the Notification, since if any change made to the qualification criteria midstream is accepted by the Court so as to benefit only the petitioners before it, without making it open to all the qualified persons, it would amount to causing injustice to the others who possess such qualification but had not applied being honest to themselves as knowingly they did not possess the qualification sought for in the Notification though they otherwise held another degree. Therefore, if there is any change in qualification / criteria after the notification is issued but before the completion of the selection process and the employer / recruiting agency seeks to adopt the change it will be incumbent on the employer to issue a corrigendum incorporating the changes to the notification and invite applications from those qualified as per the changed criteria and consider the same along with the applications received in response to the initial notification. The same principle will hold good when a consideration is made by the Court.If in that background the instant facts are taken note, it would disclose that the Notification depicting the qualification required as Degree in B.Sc. (Agro-Forestry) was issued on 17.11.2014 and the process of selection had come to an end when the private respondents herein were issued the appointment letters dated 17.09.2015 and 29.05.2015 respectively. Admittedly as on such date the Notification required the candidates possessing B.Sc. (Agro-Forestry) but the private respondents were graduates in B.Sc. (Forestry) and as such were not qualified to respond. The change was made subsequent thereto by the general corrigendum dated 16.01.2016 by including the qualification of B.Sc. (Forestry), which would be effective from that day by providing opportunity to all those holding that qualification. Therefore, in such cases the change of qualification whereby the qualification of the private respondents gets included subsequently cannot enure to their benefit alone when several others who could have applied were prevented from doing so.Further it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the decision relied upon by the learned counsel for the appellants in the case of Mohammad Shujat Ali & Ors. vs. Union of India & Ors, (1975) 3 SCC 76 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government.In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside.Having arrived at the above conclusion we also take note of the submission of the learned counsel for the private respondent in the appeal arising out of SLP© No.16567/2016 namely Smt. Aarya K. Babu that she is placed in a very difficult circumstances subsequent to the discharge from service which is also due to certain set back in her personal life. Though we do not wish to articulate the actual fact situation narrated we have no reason to disbelieve the same, hence, we find it appropriate that in her case it is necessary to exercise our discretion under Article 142 of the Constitution to serve the ends of justice and do complete justice without prejudicing either of the parties. | 1 | 3,624 | 1,104 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Masters degree¬holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post. 27. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Masters degree¬holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline of Pure Chemistry also leads to the conclusion that the said post at that stage when it was advertised was meant to be filled up by a person belonging to Pure Chemistry stream."If the above decision is kept in perspective it is clear that while examining the correctness of the action of the employer what would be sacrosanct will be the qualification criteria published in the Notification, since if any change made to the qualification criteria midstream is accepted by the Court so as to benefit only the petitioners before it, without making it open to all the qualified persons, it would amount to causing injustice to the others who possess such qualification but had not applied being honest to themselves as knowingly they did not possess the qualification sought for in the Notification though they otherwise held another degree. Therefore, if there is any change in qualification / criteria after the notification is issued but before the completion of the selection process and the employer / recruiting agency seeks to adopt the change it will be incumbent on the employer to issue a corrigendum incorporating the changes to the notification and invite applications from those qualified as per the changed criteria and consider the same along with the applications received in response to the initial notification. The same principle will hold good when a consideration is made by the Court. 15. If in that background the instant facts are taken note, it would disclose that the Notification depicting the qualification required as Degree in B.Sc. (Agro-Forestry) was issued on 17.11.2014 and the process of selection had come to an end when the private respondents herein were issued the appointment letters dated 17.09.2015 and 29.05.2015 respectively. Admittedly as on such date the Notification required the candidates possessing B.Sc. (Agro-Forestry) but the private respondents were graduates in B.Sc. (Forestry) and as such were not qualified to respond. The change was made subsequent thereto by the general corrigendum dated 16.01.2016 by including the qualification of B.Sc. (Forestry), which would be effective from that day by providing opportunity to all those holding that qualification. Therefore, in such cases the change of qualification whereby the qualification of the private respondents gets included subsequently cannot enure to their benefit alone when several others who could have applied were prevented from doing so. 16. Further it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the decision relied upon by the learned counsel for the appellants in the case of Mohammad Shujat Ali & Ors. vs. Union of India & Ors, (1975) 3 SCC 76 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government. 17. In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside. 18. Having arrived at the above conclusion we also take note of the submission of the learned counsel for the private respondent in the appeal arising out of SLP© No.16567/2016 namely Smt. Aarya K. Babu that she is placed in a very difficult circumstances subsequent to the discharge from service which is also due to certain set back in her personal life. Though we do not wish to articulate the actual fact situation narrated we have no reason to disbelieve the same, hence, we find it appropriate that in her case it is necessary to exercise our discretion under Article 142 of the Constitution to serve the ends of justice and do complete justice without prejudicing either of the parties.
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the Court to read into or assume and thereby include certain qualifications which have not been included in the Notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the Notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the Notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified.In fact, this view is fortified by the decision of this Court in the case of Mohd. Sohrab Khan vs. Aligarh Muslim University & Ors. (2009) 4 SCC 555 relied on by the learned counsel for thethe above decision is kept in perspective it is clear that while examining the correctness of the action of the employer what would be sacrosanct will be the qualification criteria published in the Notification, since if any change made to the qualification criteria midstream is accepted by the Court so as to benefit only the petitioners before it, without making it open to all the qualified persons, it would amount to causing injustice to the others who possess such qualification but had not applied being honest to themselves as knowingly they did not possess the qualification sought for in the Notification though they otherwise held another degree. Therefore, if there is any change in qualification / criteria after the notification is issued but before the completion of the selection process and the employer / recruiting agency seeks to adopt the change it will be incumbent on the employer to issue a corrigendum incorporating the changes to the notification and invite applications from those qualified as per the changed criteria and consider the same along with the applications received in response to the initial notification. The same principle will hold good when a consideration is made by the Court.If in that background the instant facts are taken note, it would disclose that the Notification depicting the qualification required as Degree in B.Sc. (Agro-Forestry) was issued on 17.11.2014 and the process of selection had come to an end when the private respondents herein were issued the appointment letters dated 17.09.2015 and 29.05.2015 respectively. Admittedly as on such date the Notification required the candidates possessing B.Sc. (Agro-Forestry) but the private respondents were graduates in B.Sc. (Forestry) and as such were not qualified to respond. The change was made subsequent thereto by the general corrigendum dated 16.01.2016 by including the qualification of B.Sc. (Forestry), which would be effective from that day by providing opportunity to all those holding that qualification. Therefore, in such cases the change of qualification whereby the qualification of the private respondents gets included subsequently cannot enure to their benefit alone when several others who could have applied were prevented from doing so.Further it is not for the Court to provide the equivalence relating to educational qualifications inasmuch as the said issue has been settled by the Constitution Bench of this Court in the decision relied upon by the learned counsel for the appellants in the case of Mohammad Shujat Ali & Ors. vs. Union of India & Ors, (1975) 3 SCC 76 wherein it is held that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government.In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment Notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside.Having arrived at the above conclusion we also take note of the submission of the learned counsel for the private respondent in the appeal arising out of SLP© No.16567/2016 namely Smt. Aarya K. Babu that she is placed in a very difficult circumstances subsequent to the discharge from service which is also due to certain set back in her personal life. Though we do not wish to articulate the actual fact situation narrated we have no reason to disbelieve the same, hence, we find it appropriate that in her case it is necessary to exercise our discretion under Article 142 of the Constitution to serve the ends of justice and do complete justice without prejudicing either of the parties.
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Rajkumar Devindra Singh & Anr Vs. State Of Punjab & Others | with what is unauthorised occupation of public premises. That section says: "For purpose of this Act, a person shall be deemed to be in unauthorised occupation of any public premises: "(a) where he has whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant; or "(b) where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or "(c) where any person authorised to occupy any public premises has, whether before or after the commencement of this Act, (i) sub-let in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such sub-letting the whole or any part of such public premises; (ii) otherwise acted in contravention of any of the terms express or implied, under which he is authorised to occupy such public premises. "Explanation: For purposes of clause (a), a person shall not merely by reason of the fact tat he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee." Section 4 (1) of the Act provides that, if Collector is of opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted, the Collector shall issue, in the manner provided in sub-sections (2), (3) and (4), a notice in writing, calling upon all persons concerned to show cause why an order of eviction should not be made." 9. A person shall be deemed to be in unauthorised occupation of public premises for purposes of S. 3 (a) where he has, before or after the commencement of the Act, entered into possession thereof, otherwise than under and in pursuance of any allotment, lease or grant.The word thereof makes it clear that the person must have entered into possession of public premises before or after the commencement of the Act in order that he may be deemed to be in unauthorised occupation. If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the Government. So, if the appellants were in possession of the property before it was sold to the Government, it could not be said that they entered into possession of public premises before or after the commencement of the Act and clause (a) of S. 3 of the Act cannot obviously apply and the appellants were not in unauthorised occupation of public premises within the meaning of clause (a) of S. 3.Therefore, the question is, whether the appellants were in possession of the property before it was sold to the Government. 10. It was alleged in paragraph 2 of the affidavit in support of the writ petition that the appellants were in possession of the property in their own right for a number of years as sons of Maharaja Bhupinder Singh; paragraph 2 of the counter-affidavit stated that the allegation is admitted to the extent that the appellants "are, at present residing in Colonel Mistrys House, Moti Bagh, Patiala. Rest of the para is not admitted". There was no denial of the allegation that the appellant were in possession of the property in their own right as sons of Maharaja Bhupinder Singh. It is difficult to understand how a Deputy Secretary to the Government of Punjab could have personal knowledge about the actual possession of the property in question before the sale deed was executed in favour of the Government. 11. The appellants were admittedly in possession of the property on the date of the issue of the impugned notice. The respondents had no case that the appellants entered into possession of the property after the date of the sale. We are not very much concerned with the title under which the appellants were in possession; what is really relevant for this case is whether the appellants were in possession of the property before the date of sale to the Government. We think that the case of the appellants that they were in possession of the property before it was sold to the Government must be taken as true. The learned single Judge also appears to have proceeded on the same basis. 12. Clause (b) of S. 3 of the Act speaks of an allottee, lessee or grantee, who has, by determination or cancellation of his allotment, lease or grant, in accordance with the terms in that behalf, ceased, whether before or after the commencement of the Act to be entitled to occupy or hold such public premises. It is clear that for this clause to apply, the person must be an allottee, lessee or grantee from the Government. We do not think that this clause can apply in this case as the appellants were not allottees, lessees or grantees of the Government. 13. Clause (c) of S. 3 of the Act can obviously have no application to the case. 14.The appellants, were not, therefore, in unauthorised occupation of public premises within the meaning of S. 3 of the Act. It is only if the appellants were in unauthorised occupation of public premises that the Collector would get jurisdiction to issue a notice under S. 4 (1) of the Act. We, therefore, hold that the notice was issued without jurisdiction and it has to be quashed and we do so. 15. | 1[ds]A person shall be deemed to be in unauthorised occupation of public premises for purposes of S. 3 (a) where he has, before or after the commencement of the Act, entered into possession thereof, otherwise than under and in pursuance of any allotment, lease or grant.The word thereof makes it clear that the person must have entered into possession of public premises before or after the commencement of the Act in order that he may be deemed to be in unauthorised occupation. If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the Government. So, if the appellants were in possession of the property before it was sold to the Government, it could not be said that they entered into possession of public premises before or after the commencement of the Act and clause (a) of S. 3 of the Act cannot obviously apply and the appellants were not in unauthorised occupation of public premises within the meaning of clause (a) of S. 3appellants, were not, therefore, in unauthorised occupation of public premises within the meaning of S. 3 of the Act. It is only if the appellants were in unauthorised occupation of public premises that the Collector would get jurisdiction to issue a notice under S. 4 (1) of the Act. We, therefore, hold that the notice was issued without jurisdiction and it has to be quashed and we do so. | 1 | 2,124 | 337 | ### 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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with what is unauthorised occupation of public premises. That section says: "For purpose of this Act, a person shall be deemed to be in unauthorised occupation of any public premises: "(a) where he has whether before or after the commencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant; or "(b) where he, being an allottee, lessee or grantee, has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or "(c) where any person authorised to occupy any public premises has, whether before or after the commencement of this Act, (i) sub-let in contravention of the terms of allotment, lease or grant, without the permission of the State Government or of any other authority competent to permit such sub-letting the whole or any part of such public premises; (ii) otherwise acted in contravention of any of the terms express or implied, under which he is authorised to occupy such public premises. "Explanation: For purposes of clause (a), a person shall not merely by reason of the fact tat he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee." Section 4 (1) of the Act provides that, if Collector is of opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted, the Collector shall issue, in the manner provided in sub-sections (2), (3) and (4), a notice in writing, calling upon all persons concerned to show cause why an order of eviction should not be made." 9. A person shall be deemed to be in unauthorised occupation of public premises for purposes of S. 3 (a) where he has, before or after the commencement of the Act, entered into possession thereof, otherwise than under and in pursuance of any allotment, lease or grant.The word thereof makes it clear that the person must have entered into possession of public premises before or after the commencement of the Act in order that he may be deemed to be in unauthorised occupation. If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the Government. So, if the appellants were in possession of the property before it was sold to the Government, it could not be said that they entered into possession of public premises before or after the commencement of the Act and clause (a) of S. 3 of the Act cannot obviously apply and the appellants were not in unauthorised occupation of public premises within the meaning of clause (a) of S. 3.Therefore, the question is, whether the appellants were in possession of the property before it was sold to the Government. 10. It was alleged in paragraph 2 of the affidavit in support of the writ petition that the appellants were in possession of the property in their own right for a number of years as sons of Maharaja Bhupinder Singh; paragraph 2 of the counter-affidavit stated that the allegation is admitted to the extent that the appellants "are, at present residing in Colonel Mistrys House, Moti Bagh, Patiala. Rest of the para is not admitted". There was no denial of the allegation that the appellant were in possession of the property in their own right as sons of Maharaja Bhupinder Singh. It is difficult to understand how a Deputy Secretary to the Government of Punjab could have personal knowledge about the actual possession of the property in question before the sale deed was executed in favour of the Government. 11. The appellants were admittedly in possession of the property on the date of the issue of the impugned notice. The respondents had no case that the appellants entered into possession of the property after the date of the sale. We are not very much concerned with the title under which the appellants were in possession; what is really relevant for this case is whether the appellants were in possession of the property before the date of sale to the Government. We think that the case of the appellants that they were in possession of the property before it was sold to the Government must be taken as true. The learned single Judge also appears to have proceeded on the same basis. 12. Clause (b) of S. 3 of the Act speaks of an allottee, lessee or grantee, who has, by determination or cancellation of his allotment, lease or grant, in accordance with the terms in that behalf, ceased, whether before or after the commencement of the Act to be entitled to occupy or hold such public premises. It is clear that for this clause to apply, the person must be an allottee, lessee or grantee from the Government. We do not think that this clause can apply in this case as the appellants were not allottees, lessees or grantees of the Government. 13. Clause (c) of S. 3 of the Act can obviously have no application to the case. 14.The appellants, were not, therefore, in unauthorised occupation of public premises within the meaning of S. 3 of the Act. It is only if the appellants were in unauthorised occupation of public premises that the Collector would get jurisdiction to issue a notice under S. 4 (1) of the Act. We, therefore, hold that the notice was issued without jurisdiction and it has to be quashed and we do so. 15.
### Response:
1
### Explanation:
A person shall be deemed to be in unauthorised occupation of public premises for purposes of S. 3 (a) where he has, before or after the commencement of the Act, entered into possession thereof, otherwise than under and in pursuance of any allotment, lease or grant.The word thereof makes it clear that the person must have entered into possession of public premises before or after the commencement of the Act in order that he may be deemed to be in unauthorised occupation. If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they were in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the Government. So, if the appellants were in possession of the property before it was sold to the Government, it could not be said that they entered into possession of public premises before or after the commencement of the Act and clause (a) of S. 3 of the Act cannot obviously apply and the appellants were not in unauthorised occupation of public premises within the meaning of clause (a) of S. 3appellants, were not, therefore, in unauthorised occupation of public premises within the meaning of S. 3 of the Act. It is only if the appellants were in unauthorised occupation of public premises that the Collector would get jurisdiction to issue a notice under S. 4 (1) of the Act. We, therefore, hold that the notice was issued without jurisdiction and it has to be quashed and we do so.
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Har Pyari Devi Vs. Ghansham Singh | Krishna Iyer, J. The facts in this case are simple and the law simpler. The decision by the Full Bench (Ghansham Singh v. Smt. Har Piarey, AIR 1974 All 229 : 1974 All LJ 452 : ILR (1974) 2 All 31) is unassailable.2. Briefly the facts are that one Parvati Devi had obtained a decree as owner of a shop for eviction of Khursheed, the judgment-debtor, who was the tenant. The decree-holder died on March 20, 1964 leaving a Will bequeathing the property in favour of Ghanshiam, the respondent who was her loyal servant for long. On the basis of this Will Ghanshiam filed an execution petition on May 20, 1964 to enforce the decree for eviction. The appellant before us filed an execution petition claiming the rights as an heir under the Hindu Succession Act, 1956 being the stepdaughter of the deceased. She also contested the genuineness of the Will. The executing court after considering the question of the genuineness of the Will upheld it and that finding was affirmed by the District Court and the High Court. Thus this finding about the genuineness of the Will has become final and the claim of the respondent as decree-holder is unassailable at the instance of the appellant. Thereafter apparently to circumvent the effect of the adjudication in favour of the respondent, an interpleader suit was brought by another tenant Shambhu Prasad wherein the present appellant was originally being impleaded as defendant but eventually transposed as the plaintiff. In that suit the Will was again challenged but on the score that an adjudication had already gone against the present appellant and the question of title has thereby been concluded, the High Court in reversal of the judgments of the two courts below upheld the right of the present respondent and negatived the claim of the appellant holding that the finding in the earlier litigation was res judicata.3. We have no hesitation in agreeing with the High Court in its conclusion and the distinction (sought to be drawn by counsel for the appellant) is irrelevant to the issue (and) cannot detract from the binding nature of the earlier adjudication. We do not think there is any need to discuss this point at length because it is, for one thing, an obvious proposition of law and for another, has received detailed consideration at the hands of the High Court. | 0[ds]Thus this finding about the genuineness of the Will has become final and the claim of the respondent asis unassailable at the instance of the appellant. Thereafter apparently to circumvent the effect of the adjudication in favour of the respondent, an interpleader suit was brought by another tenant Shambhu Prasad wherein the present appellant was originally being impleaded as defendant but eventually transposed as the plaintiff. In that suit the Will was again challenged but on the score that an adjudication had already gone against the present appellant and the question of title has thereby been concluded, the High Court in reversal of the judgments of the two courts below upheld the right of the present respondent and negatived the claim of the appellant holding that the finding in the earlier litigation was res judicata.3. We have no hesitation in agreeing with the High Court in its conclusion and the distinction (sought to be drawn by counsel for the appellant) is irrelevant to the issue (and) cannot detract from the binding nature of the earlier adjudication. We do not think there is any need to discuss this point at length because it is, for one thing, an obvious proposition of law and for another, has received detailed consideration at the hands of the High Court. | 0 | 433 | 234 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
Krishna Iyer, J. The facts in this case are simple and the law simpler. The decision by the Full Bench (Ghansham Singh v. Smt. Har Piarey, AIR 1974 All 229 : 1974 All LJ 452 : ILR (1974) 2 All 31) is unassailable.2. Briefly the facts are that one Parvati Devi had obtained a decree as owner of a shop for eviction of Khursheed, the judgment-debtor, who was the tenant. The decree-holder died on March 20, 1964 leaving a Will bequeathing the property in favour of Ghanshiam, the respondent who was her loyal servant for long. On the basis of this Will Ghanshiam filed an execution petition on May 20, 1964 to enforce the decree for eviction. The appellant before us filed an execution petition claiming the rights as an heir under the Hindu Succession Act, 1956 being the stepdaughter of the deceased. She also contested the genuineness of the Will. The executing court after considering the question of the genuineness of the Will upheld it and that finding was affirmed by the District Court and the High Court. Thus this finding about the genuineness of the Will has become final and the claim of the respondent as decree-holder is unassailable at the instance of the appellant. Thereafter apparently to circumvent the effect of the adjudication in favour of the respondent, an interpleader suit was brought by another tenant Shambhu Prasad wherein the present appellant was originally being impleaded as defendant but eventually transposed as the plaintiff. In that suit the Will was again challenged but on the score that an adjudication had already gone against the present appellant and the question of title has thereby been concluded, the High Court in reversal of the judgments of the two courts below upheld the right of the present respondent and negatived the claim of the appellant holding that the finding in the earlier litigation was res judicata.3. We have no hesitation in agreeing with the High Court in its conclusion and the distinction (sought to be drawn by counsel for the appellant) is irrelevant to the issue (and) cannot detract from the binding nature of the earlier adjudication. We do not think there is any need to discuss this point at length because it is, for one thing, an obvious proposition of law and for another, has received detailed consideration at the hands of the High Court.
### Response:
0
### Explanation:
Thus this finding about the genuineness of the Will has become final and the claim of the respondent asis unassailable at the instance of the appellant. Thereafter apparently to circumvent the effect of the adjudication in favour of the respondent, an interpleader suit was brought by another tenant Shambhu Prasad wherein the present appellant was originally being impleaded as defendant but eventually transposed as the plaintiff. In that suit the Will was again challenged but on the score that an adjudication had already gone against the present appellant and the question of title has thereby been concluded, the High Court in reversal of the judgments of the two courts below upheld the right of the present respondent and negatived the claim of the appellant holding that the finding in the earlier litigation was res judicata.3. We have no hesitation in agreeing with the High Court in its conclusion and the distinction (sought to be drawn by counsel for the appellant) is irrelevant to the issue (and) cannot detract from the binding nature of the earlier adjudication. We do not think there is any need to discuss this point at length because it is, for one thing, an obvious proposition of law and for another, has received detailed consideration at the hands of the High Court.
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James Anderson Vs. The Commissioner Of Income-Tax,Bombay | who owned the assets before the distribution and who alone can be liable to tax under the section. If, therefore, the correct interpretation of the third proviso is distribution of capital assets in specie, the proviso does not serve any purpose. Therefore, Mr. Palkhivala has argued that the expression "distribution of capital assets" must be given a meaning which will fulfil a purpose and correlate the proviso to the substantive provision in sub-S. (1). That meaning, according to him, is distribution of sale proceeds of capital assets.7. We are unable to accept the argument as correct. Firstly, having regard to the definition of the expression "capital assets", it would be wrong to read" distribution of capital assets" as meaning "distribution of sale proceeds of capital assets". Obviously, there is a clear and vital distinction between "capital assets" and their "sale preceeds". If capital assets are sold first and a distribution of the sale proceeds is made afterwards, then the sale proceeds distribution and what is distributed is not capital assets but the sale proceeds thereof. Secondly, we do not agree that the third proviso serves no purpose if the expression "distribution of capital assets" is given its natural and plain meaning, viz. distribution in specie. The High Court expressed the view that by the proviso the legislature might have intended to protect an assessee from a possible argument by the Revenue that when (to take an example appropriate to the case) an executor or administrator transferred the estate or part of the estate to the person entitled to it, there was a transfer within the meaning of sub-s. (1) of S. 12B. To us it seems that the purpose of the proviso is abundantly clear if the scheme of sub-ss. (1), (2) and (3) is kept in mind. Assume that there is a distribution of capital assets in specie amongst the legatees, and one of the legatees sells the capital assets which he got in one of the ways mentioned in the third proviso; he at once becomes liable to tax on the profits made on the sale. Sub-section (3) makes that position clear and if the proviso is read in the context of the substantive provisions of S. 12B its purpose is quite clear. The purpose is this: as long as there is distribution of the capital assets in specie and no sale, there is no transfer for the purposes of the section; but as soon as there is a sale of the capital assets and profits or gains arise therefrom, the liability to tax arises, whether the sale be by the administrator or the legatee. It is significant that the proviso uses the words "for the purposes of this section" and not merely sub-s. (1). Indeed, Mr. Palkhivala was forced to concede that in view of the provisions of sub-s. (3) of S. 12B, the expression "distribution of capital assets" must also mean distribution in specie because under sub-s. (3) it is the capital asset which becomes the property of the assessee under any of the circumstances mentioned in the third proviso. He then contended that the expression meant both distribution in specie and distribution of sale proceeds. We do not see why an unnatural or forced meaning should be given to the expression, when by giving the expression its plain and natural meaning the third proviso fits in with the scheme of sub- ss. (1), (2) and (3) of S. 12B of the Act. It is necessary to point out here that on the interpretation sought to be placed on the third proviso on behalf of the appellant, the administrator will escape paying tax if he sells the capital assets; but the legatee will not escape if he sells the capital assets after having received them in specie from the administrator. This is an anomaly which is against the scheme of S. 12B of the Act.We are accordingly of the view that the High Court rightly held that the expression "distribution of capital assets" in the third proviso to sub-s. (1) of S. 12B of the Act means distribution in specie and not distribution of sale proceeds. 8. In the High Court an alternative argument was also presented on behalf of the assessee to the effect that the third provisos contemplated involuntary transfers. This argument was based on the use of the expression by reason of in the proviso, and the proviso was sought to be read as follows (omitting words not relevant to the case):"Provided further that any transfer of capital assets by reason of any distribution of capital assets under a........... will ..... shall not for the purposes of this section be treated as sale, exchange or transfer of the capital assets." The argument was that inasmuch as the administrator sold the shares and securities for the purpose of distributing the sale proceeds to the legatees, the sale was involuntary and was necessitated by reason of the terms of the will; therefore, he was protected under the third proviso. The High Court repelled this argument and for good reasons.Firstly, the question whether the sale was voluntary or involuntary is not germane to the scheme of S. 12B. Secondly, on a proper reading of the proviso, the expression by reason of goes with the clause relating to compulsory acquisition of property and not with the distribution of capital assets. 9. The position seems to us to be so clear that it is unnecessary to labour it or to refer to decided cases. Such decisions of the High Courts as have been brought to our notice are all one way and they take the same view as was taken by the High Court in the decision under appeal (see Sri Kannan Rice Mills Ltd. v. Commissioner of Income-tax, Madras, 1954-26 ITR 351 (Mad); Commissioner of Income-tax, Bombay North v. Walji Damji, 1955-28 ITR 914 : (AIR 1956 Bom 438 ); and Gowri Tile Works v. Commissioner of Income-tax, Madras, 1957-31 ITR 250: (AIR 1957 Mad 453 ) | 0[ds]4. The question whether the levy of capital gains under S. 12B is ultra vires no longer survives by reason of the decision of this Court in Navinchandra Mafatlal v. Commissioner of Income-tax 1954-26 ITR 758 : 1955 SCR 829: ( (S) AIR 1955 SC 58 ). This question was not therefore pressed before us. The question under S. 24B was also not seriously pressed.The view of the Bombay High Court that S. 24B does not limit the liability of the Administrator or Executor of the cases referred to under the section is correct; because the appellant is as much an assessee under the Act as any other individual and if he makes capital gains, he is as much liable to pay that as any other individual. This position has not been seriously contested before usIf the appellant comes within that ambit, then the sales which he made of the shares and securities will not be treated as transfer within the meaning of sub-s. (1)7. We are unable to accept the argument as correct. Firstly, having regard to the definition of the expression "capital assets", it would be wrong to read" distribution of capital assets" as meaning "distribution of sale proceeds of capital assets". Obviously, there is a clear and vital distinction between "capital assets" and their "sale preceeds". If capital assets are sold first and a distribution of the sale proceeds is made afterwards, then the sale proceeds distribution and what is distributed is not capital assets but the sale proceeds thereof. Secondly, we do not agree that the third proviso serves no purpose if the expression "distribution of capital assets" is given its natural and plain meaning, viz. distribution in specie. The High Court expressed the view that by the proviso the legislature might have intended to protect an assessee from a possible argument by the Revenue that when (to take an example appropriate to the case) an executor or administrator transferred the estate or part of the estate to the person entitled to it, there was a transfer within the meaning of sub-s. (1) of S. 12B. To us it seems that the purpose of the proviso is abundantly clear if the scheme of sub-ss. (1), (2) and (3) is kept in mind. Assume that there is a distribution of capital assets in specie amongst the legatees, and one of the legatees sells the capital assets which he got in one of the ways mentioned in the third proviso; he at once becomes liable to tax on the profits made on the sale. Sub-section (3) makes that position clear and if the proviso is read in the context of the substantive provisions of S. 12B its purpose is quite clear. The purpose is this: as long as there is distribution of the capital assets in specie and no sale, there is no transfer for the purposes of the section; but as soon as there is a sale of the capital assets and profits or gains arise therefrom, the liability to tax arises, whether the sale be by the administrator or the legatee. It is significant that the proviso uses the words "for the purposes of this section" and not merely sub-s. (1). Indeed, Mr. Palkhivala was forced to concede that in view of the provisions of sub-s. (3) of S. 12B, the expression "distribution of capital assets" must also mean distribution in specie because under sub-s. (3) it is the capital asset which becomes the property of the assessee under any of the circumstances mentioned in the third proviso. He then contended that the expression meant both distribution in specie and distribution of sale proceeds. We do not see why an unnatural or forced meaning should be given to the expression, when by giving the expression its plain and natural meaning the third proviso fits in with the scheme of sub- ss. (1), (2) and (3) of S. 12B of the Act. It is necessary to point out here that on the interpretation sought to be placed on the third proviso on behalf of the appellant, the administrator will escape paying tax if he sells the capital assets; but the legatee will not escape if he sells the capital assets after having received them in specie from the administrator. This is an anomaly which is against the scheme of S. 12B of the Act.We are accordingly of the view that the High Court rightly held that the expression "distribution of capital assets" in the third proviso to sub-s. (1) of S. 12B of the Act means distribution in specie and not distribution of sale proceeds9. The position seems to us to be so clear that it is unnecessary to labour it or to refer to decided cases. Such decisions of the High Courts as have been brought to our notice are all one way and they take the same view as was taken by the High Court in the decision under appeal | 0 | 3,725 | 928 | ### 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:
who owned the assets before the distribution and who alone can be liable to tax under the section. If, therefore, the correct interpretation of the third proviso is distribution of capital assets in specie, the proviso does not serve any purpose. Therefore, Mr. Palkhivala has argued that the expression "distribution of capital assets" must be given a meaning which will fulfil a purpose and correlate the proviso to the substantive provision in sub-S. (1). That meaning, according to him, is distribution of sale proceeds of capital assets.7. We are unable to accept the argument as correct. Firstly, having regard to the definition of the expression "capital assets", it would be wrong to read" distribution of capital assets" as meaning "distribution of sale proceeds of capital assets". Obviously, there is a clear and vital distinction between "capital assets" and their "sale preceeds". If capital assets are sold first and a distribution of the sale proceeds is made afterwards, then the sale proceeds distribution and what is distributed is not capital assets but the sale proceeds thereof. Secondly, we do not agree that the third proviso serves no purpose if the expression "distribution of capital assets" is given its natural and plain meaning, viz. distribution in specie. The High Court expressed the view that by the proviso the legislature might have intended to protect an assessee from a possible argument by the Revenue that when (to take an example appropriate to the case) an executor or administrator transferred the estate or part of the estate to the person entitled to it, there was a transfer within the meaning of sub-s. (1) of S. 12B. To us it seems that the purpose of the proviso is abundantly clear if the scheme of sub-ss. (1), (2) and (3) is kept in mind. Assume that there is a distribution of capital assets in specie amongst the legatees, and one of the legatees sells the capital assets which he got in one of the ways mentioned in the third proviso; he at once becomes liable to tax on the profits made on the sale. Sub-section (3) makes that position clear and if the proviso is read in the context of the substantive provisions of S. 12B its purpose is quite clear. The purpose is this: as long as there is distribution of the capital assets in specie and no sale, there is no transfer for the purposes of the section; but as soon as there is a sale of the capital assets and profits or gains arise therefrom, the liability to tax arises, whether the sale be by the administrator or the legatee. It is significant that the proviso uses the words "for the purposes of this section" and not merely sub-s. (1). Indeed, Mr. Palkhivala was forced to concede that in view of the provisions of sub-s. (3) of S. 12B, the expression "distribution of capital assets" must also mean distribution in specie because under sub-s. (3) it is the capital asset which becomes the property of the assessee under any of the circumstances mentioned in the third proviso. He then contended that the expression meant both distribution in specie and distribution of sale proceeds. We do not see why an unnatural or forced meaning should be given to the expression, when by giving the expression its plain and natural meaning the third proviso fits in with the scheme of sub- ss. (1), (2) and (3) of S. 12B of the Act. It is necessary to point out here that on the interpretation sought to be placed on the third proviso on behalf of the appellant, the administrator will escape paying tax if he sells the capital assets; but the legatee will not escape if he sells the capital assets after having received them in specie from the administrator. This is an anomaly which is against the scheme of S. 12B of the Act.We are accordingly of the view that the High Court rightly held that the expression "distribution of capital assets" in the third proviso to sub-s. (1) of S. 12B of the Act means distribution in specie and not distribution of sale proceeds. 8. In the High Court an alternative argument was also presented on behalf of the assessee to the effect that the third provisos contemplated involuntary transfers. This argument was based on the use of the expression by reason of in the proviso, and the proviso was sought to be read as follows (omitting words not relevant to the case):"Provided further that any transfer of capital assets by reason of any distribution of capital assets under a........... will ..... shall not for the purposes of this section be treated as sale, exchange or transfer of the capital assets." The argument was that inasmuch as the administrator sold the shares and securities for the purpose of distributing the sale proceeds to the legatees, the sale was involuntary and was necessitated by reason of the terms of the will; therefore, he was protected under the third proviso. The High Court repelled this argument and for good reasons.Firstly, the question whether the sale was voluntary or involuntary is not germane to the scheme of S. 12B. Secondly, on a proper reading of the proviso, the expression by reason of goes with the clause relating to compulsory acquisition of property and not with the distribution of capital assets. 9. The position seems to us to be so clear that it is unnecessary to labour it or to refer to decided cases. Such decisions of the High Courts as have been brought to our notice are all one way and they take the same view as was taken by the High Court in the decision under appeal (see Sri Kannan Rice Mills Ltd. v. Commissioner of Income-tax, Madras, 1954-26 ITR 351 (Mad); Commissioner of Income-tax, Bombay North v. Walji Damji, 1955-28 ITR 914 : (AIR 1956 Bom 438 ); and Gowri Tile Works v. Commissioner of Income-tax, Madras, 1957-31 ITR 250: (AIR 1957 Mad 453 )
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### Explanation:
4. The question whether the levy of capital gains under S. 12B is ultra vires no longer survives by reason of the decision of this Court in Navinchandra Mafatlal v. Commissioner of Income-tax 1954-26 ITR 758 : 1955 SCR 829: ( (S) AIR 1955 SC 58 ). This question was not therefore pressed before us. The question under S. 24B was also not seriously pressed.The view of the Bombay High Court that S. 24B does not limit the liability of the Administrator or Executor of the cases referred to under the section is correct; because the appellant is as much an assessee under the Act as any other individual and if he makes capital gains, he is as much liable to pay that as any other individual. This position has not been seriously contested before usIf the appellant comes within that ambit, then the sales which he made of the shares and securities will not be treated as transfer within the meaning of sub-s. (1)7. We are unable to accept the argument as correct. Firstly, having regard to the definition of the expression "capital assets", it would be wrong to read" distribution of capital assets" as meaning "distribution of sale proceeds of capital assets". Obviously, there is a clear and vital distinction between "capital assets" and their "sale preceeds". If capital assets are sold first and a distribution of the sale proceeds is made afterwards, then the sale proceeds distribution and what is distributed is not capital assets but the sale proceeds thereof. Secondly, we do not agree that the third proviso serves no purpose if the expression "distribution of capital assets" is given its natural and plain meaning, viz. distribution in specie. The High Court expressed the view that by the proviso the legislature might have intended to protect an assessee from a possible argument by the Revenue that when (to take an example appropriate to the case) an executor or administrator transferred the estate or part of the estate to the person entitled to it, there was a transfer within the meaning of sub-s. (1) of S. 12B. To us it seems that the purpose of the proviso is abundantly clear if the scheme of sub-ss. (1), (2) and (3) is kept in mind. Assume that there is a distribution of capital assets in specie amongst the legatees, and one of the legatees sells the capital assets which he got in one of the ways mentioned in the third proviso; he at once becomes liable to tax on the profits made on the sale. Sub-section (3) makes that position clear and if the proviso is read in the context of the substantive provisions of S. 12B its purpose is quite clear. The purpose is this: as long as there is distribution of the capital assets in specie and no sale, there is no transfer for the purposes of the section; but as soon as there is a sale of the capital assets and profits or gains arise therefrom, the liability to tax arises, whether the sale be by the administrator or the legatee. It is significant that the proviso uses the words "for the purposes of this section" and not merely sub-s. (1). Indeed, Mr. Palkhivala was forced to concede that in view of the provisions of sub-s. (3) of S. 12B, the expression "distribution of capital assets" must also mean distribution in specie because under sub-s. (3) it is the capital asset which becomes the property of the assessee under any of the circumstances mentioned in the third proviso. He then contended that the expression meant both distribution in specie and distribution of sale proceeds. We do not see why an unnatural or forced meaning should be given to the expression, when by giving the expression its plain and natural meaning the third proviso fits in with the scheme of sub- ss. (1), (2) and (3) of S. 12B of the Act. It is necessary to point out here that on the interpretation sought to be placed on the third proviso on behalf of the appellant, the administrator will escape paying tax if he sells the capital assets; but the legatee will not escape if he sells the capital assets after having received them in specie from the administrator. This is an anomaly which is against the scheme of S. 12B of the Act.We are accordingly of the view that the High Court rightly held that the expression "distribution of capital assets" in the third proviso to sub-s. (1) of S. 12B of the Act means distribution in specie and not distribution of sale proceeds9. The position seems to us to be so clear that it is unnecessary to labour it or to refer to decided cases. Such decisions of the High Courts as have been brought to our notice are all one way and they take the same view as was taken by the High Court in the decision under appeal
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Lazarus D'Souza Vs. National Small Scale Industries Co-Operation Limited & Others | application filed or in the certificate issued by the respondent no.1, as the liability of the petitioner/guarantor would arise only on failure to recover the amount from the borrower. This position is further made clear from the terms of the personal guaranty purported to have been executed by the petitioner in favour of the respondent no.1 on 10/08/1985. The relevant paragraph reads thus;"Now it is hereby agreed and declared as follows :That in the event of failure by Shri Marshall DSouza to pay the dues of all denominations to the owners for all losses and damages sustained by the owners. ......"8.Record reveals that during the pendency of the proceedings before the Deputy Collector/ respondent no.3, notices came to be issued to the proprietor Mr. Marshall DSouza, but the notice was returned back by the Talathi by stating that Mr. Marshall DSouza was not residing at the given address. It was also informed that the borrower has now shifted his place of residence to Madhya Pradesh. Para 3 of the impugned order observes that during the course of hearing it was brought to the notice by the applicant (respondent no.1 herein) that one Lazarous DSouza (the present petitioner) has executed personal guaranty securing the loan advanced in favour of Marshall DSouza on 10/08/1985. It was then informed by the applicant that the guarantor is the brother of Marshall DSouza. In view of this disclosure made by the applicant before the respondent no.3 notices came to be issued and served on the present petitioner. The petitioner had objected to the proceedings being taken against him for recovery of the arrears of higher purchase loan amount. The impugned order records the reasons for rejection of the petitioners objection in paragraph 5 and 12. The reasons are:(1) That the petitioner is the brother of the borrower,(2) That the petitioner has failed to provide and furnish details of the movable and/or immovable property of the borrower,(3) That the petitioner has not co-operated in the proceedings. For the reasons stated herein above, the respondent No.3 has held the petitioner liable to pay the amount and directed recovery of the same from the petitioner as arrears of land revenue.9.In this fact situation, the learned Counsel for the petitioner has submitted that the Collector has no jurisdiction to proceed against any person unless and until a certificate is furnished by the State Government or the Corporation duly signed by the authorised officer indicating the name of the person from whom the amount is to be recovered with other details and particulars thereof. It is contended that what is capable of being executed is the recovery certificate issued by the Authorised officer naming a given person and stipulating the amount to be recovered from such a person. It is also contended that the scope of inquiry contemplated by sub-section 2 of Section 3 is limited and cannot extend beyond the particulars required to be stated in the certificate. Thus, the submission is that in the absence of a certificate being issued by the Authorised officer it is impermissible for the Collector and it would be beyond his power and authority to proceed against the petitioner and hold him liable to pay a given sum of money and direct the recovery of that amount as arrears of land revenue. The submission is well merited. The learned Counsel appearing for respondent no.1 has tried to contend that even in the absence of the certificate being issued by the Authorised officer of the State Government or the Corporation it would be open for the Collector to make an inquiry with a view to find out as to who others, in addition to the borrower, are liable for the payment of the amount due and if the Collector pursuant to such an inquiry reaches a conclusion that a given sum of money is due and recoverable either from the Guarantor or such other person, he can proceed to recover the amount from them as arrears of land revenue. We are afraid we cannot subscribe to this view. In the scheme of the Act, the Collector has been named as a recovery officer with a limited jurisdiction and the jurisdiction to initiate inquiry would be dependent upon the existence of validly issued certificate by an Authorised officer, furnishing the particulars as required under the rules in the form prescribed. In the absence of a certificate being issued against a given person, stipulating a definite sum of amount due, the Collector in the midst of an inquiry against the borrower cannot proceed against third party which is not named in the certificate and in regard to whom no particulars are furnished to the Collector. Absence of the particulars to be furnished in the certificate would not even enable the Collector to make a proper inquiry. The application of mind by a responsible officer is only at one stage i.e. when a certificate is issued by the authorised officer of the State Government or the Corporation. There are hardly any safeguards for the borrower or the Guarantors in the scheme of the Act. The only safeguard against a drastic power of recovery is application of mind by the Authorised officer while issuing the certificate. If this be the position, we have no hesitation in holding that the requirement for issuing a certificate of recovery by the Authorised officer is sine qua non for initiation of the inquiry by the Collector under Section 3(2) of the Act. In the absence of a certificate as contemplated by Section 3, sub-section 1, the Collector would have no jurisdiction to make an inquiry. The respondent no.3 cannot fasten any liability on the petitioner and direct the recovery of a sum purportedly due from him in the absence of a certificate issued by the Authorised officer.10.In the result, in our view, the impugned order passed by the Collector dated 25/02/2002 in case No.DRO (N)/3(92)/98/NSIC-PNJ/206 is wholly unsustainable in law being without jurisdiction and thus deserves to be quashed and set aside. | 1[ds]The proviso to2(a) lays down that where the Collector is of the opinion that it is necessary so to do for safeguarding the recovery of the sum due to the State Government, Corporation, Government Company or Bank, as the case may be, he may, for reasons to be recorded direct proceedings to be taken for the recovery of the sum due as if it were an arrear of land revenue before or at the same time the proceedings are taken for sale of the goodsthe only provisions which relate to the recovery are contained in Section 3 and Section 4 of the Act. Section 4 is aimed at protecting the interest of the State Government, Corporation, etc. and the only limited protection that is available to the borrower or to the guarantor is comprised inion (2) of Sectionis only one stage at which the Authorised officer is obliged to apply his mind in regard to the person from whom the amount is to be recovered and the exact sum due to be recovered from the person named in the certificate. The Collector on receipt of the certificate is invested with a limited power to make an inquiry touching the contents of the certificate. The Collector who is expected to recover the sum due as arrears of land revenue is not empowered to travel beyond the particulars furnished in theview of this disclosure made by the applicant before the respondent no.3 notices came to be issued and served on the present petitioner. The petitioner had objected to the proceedings being taken against him for recovery of the arrears of higher purchase loan amount. The impugned order records the reasons for rejection of the petitioners objection in paragraph 5 and 12. The reasons are:(1) That the petitioner is the brother of the borrower,(2) That the petitioner has failed to provide and furnish details of the movable and/or immovable property of the borrower,(3) That the petitioner has notin the proceedings. For the reasons stated herein above, the respondent No.3 has held the petitioner liable to pay the amount and directed recovery of the same from the petitioner as arrears of landthe submission is that in the absence of a certificate being issued by the Authorised officer it is impermissible for the Collector and it would be beyond his power and authority to proceed against the petitioner and hold him liable to pay a given sum of money and direct the recovery of that amount as arrears of land revenue. The submission is well merited. The learned Counsel appearing for respondent no.1 has tried to contend that even in the absence of the certificate being issued by the Authorised officer of the State Government or the Corporation it would be open for the Collector to make an inquiry with a view to find out as to who others, in addition to the borrower, are liable for the payment of the amount due and if the Collector pursuant to such an inquiry reaches a conclusion that a given sum of money is due and recoverable either from the Guarantor or such other person, he can proceed to recover the amount from them as arrears of land revenue. We are afraid we cannot subscribe to thisthe scheme of the Act, the Collector has been named as a recovery officer with a limited jurisdiction and the jurisdiction to initiate inquiry would be dependent upon the existence of validly issued certificate by an Authorised officer, furnishing the particulars as required under the rules in the form prescribed. In the absence of a certificate being issued against a given person, stipulating a definite sum of amount due, the Collector in the midst of an inquiry against the borrower cannot proceed against third party which is not named in the certificate and in regard to whom no particulars are furnished to the Collector. Absence of the particulars to be furnished in the certificate would not even enable the Collector to make a proper inquiry. The application of mind by a responsible officer is only at one stage i.e. when a certificate is issued by the authorised officer of the State Government or the Corporation. There are hardly any safeguards for the borrower or the Guarantors in the scheme of the Act. The only safeguard against a drastic power of recovery is application of mind by the Authorised officer while issuing the certificate. If this be the position, we have no hesitation in holding that the requirement for issuing a certificate of recovery by the Authorised officer is sine qua non for initiation of the inquiry by the Collector under Section 3(2) of the Act. In the absence of a certificate as contemplated by Section 3,1, the Collector would have no jurisdiction to make an inquiry. The respondent no.3 cannot fasten any liability on the petitioner and direct the recovery of a sum purportedly due from him in the absence of a certificate issued by the Authorised officer.10.In the result, in our view, the impugned order passed by the Collector dated 25/02/2002 in case No.DROis wholly unsustainable in law being without jurisdiction and thus deserves to be quashed and set aside. | 1 | 3,969 | 927 | ### Instruction:
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application filed or in the certificate issued by the respondent no.1, as the liability of the petitioner/guarantor would arise only on failure to recover the amount from the borrower. This position is further made clear from the terms of the personal guaranty purported to have been executed by the petitioner in favour of the respondent no.1 on 10/08/1985. The relevant paragraph reads thus;"Now it is hereby agreed and declared as follows :That in the event of failure by Shri Marshall DSouza to pay the dues of all denominations to the owners for all losses and damages sustained by the owners. ......"8.Record reveals that during the pendency of the proceedings before the Deputy Collector/ respondent no.3, notices came to be issued to the proprietor Mr. Marshall DSouza, but the notice was returned back by the Talathi by stating that Mr. Marshall DSouza was not residing at the given address. It was also informed that the borrower has now shifted his place of residence to Madhya Pradesh. Para 3 of the impugned order observes that during the course of hearing it was brought to the notice by the applicant (respondent no.1 herein) that one Lazarous DSouza (the present petitioner) has executed personal guaranty securing the loan advanced in favour of Marshall DSouza on 10/08/1985. It was then informed by the applicant that the guarantor is the brother of Marshall DSouza. In view of this disclosure made by the applicant before the respondent no.3 notices came to be issued and served on the present petitioner. The petitioner had objected to the proceedings being taken against him for recovery of the arrears of higher purchase loan amount. The impugned order records the reasons for rejection of the petitioners objection in paragraph 5 and 12. The reasons are:(1) That the petitioner is the brother of the borrower,(2) That the petitioner has failed to provide and furnish details of the movable and/or immovable property of the borrower,(3) That the petitioner has not co-operated in the proceedings. For the reasons stated herein above, the respondent No.3 has held the petitioner liable to pay the amount and directed recovery of the same from the petitioner as arrears of land revenue.9.In this fact situation, the learned Counsel for the petitioner has submitted that the Collector has no jurisdiction to proceed against any person unless and until a certificate is furnished by the State Government or the Corporation duly signed by the authorised officer indicating the name of the person from whom the amount is to be recovered with other details and particulars thereof. It is contended that what is capable of being executed is the recovery certificate issued by the Authorised officer naming a given person and stipulating the amount to be recovered from such a person. It is also contended that the scope of inquiry contemplated by sub-section 2 of Section 3 is limited and cannot extend beyond the particulars required to be stated in the certificate. Thus, the submission is that in the absence of a certificate being issued by the Authorised officer it is impermissible for the Collector and it would be beyond his power and authority to proceed against the petitioner and hold him liable to pay a given sum of money and direct the recovery of that amount as arrears of land revenue. The submission is well merited. The learned Counsel appearing for respondent no.1 has tried to contend that even in the absence of the certificate being issued by the Authorised officer of the State Government or the Corporation it would be open for the Collector to make an inquiry with a view to find out as to who others, in addition to the borrower, are liable for the payment of the amount due and if the Collector pursuant to such an inquiry reaches a conclusion that a given sum of money is due and recoverable either from the Guarantor or such other person, he can proceed to recover the amount from them as arrears of land revenue. We are afraid we cannot subscribe to this view. In the scheme of the Act, the Collector has been named as a recovery officer with a limited jurisdiction and the jurisdiction to initiate inquiry would be dependent upon the existence of validly issued certificate by an Authorised officer, furnishing the particulars as required under the rules in the form prescribed. In the absence of a certificate being issued against a given person, stipulating a definite sum of amount due, the Collector in the midst of an inquiry against the borrower cannot proceed against third party which is not named in the certificate and in regard to whom no particulars are furnished to the Collector. Absence of the particulars to be furnished in the certificate would not even enable the Collector to make a proper inquiry. The application of mind by a responsible officer is only at one stage i.e. when a certificate is issued by the authorised officer of the State Government or the Corporation. There are hardly any safeguards for the borrower or the Guarantors in the scheme of the Act. The only safeguard against a drastic power of recovery is application of mind by the Authorised officer while issuing the certificate. If this be the position, we have no hesitation in holding that the requirement for issuing a certificate of recovery by the Authorised officer is sine qua non for initiation of the inquiry by the Collector under Section 3(2) of the Act. In the absence of a certificate as contemplated by Section 3, sub-section 1, the Collector would have no jurisdiction to make an inquiry. The respondent no.3 cannot fasten any liability on the petitioner and direct the recovery of a sum purportedly due from him in the absence of a certificate issued by the Authorised officer.10.In the result, in our view, the impugned order passed by the Collector dated 25/02/2002 in case No.DRO (N)/3(92)/98/NSIC-PNJ/206 is wholly unsustainable in law being without jurisdiction and thus deserves to be quashed and set aside.
### Response:
1
### Explanation:
The proviso to2(a) lays down that where the Collector is of the opinion that it is necessary so to do for safeguarding the recovery of the sum due to the State Government, Corporation, Government Company or Bank, as the case may be, he may, for reasons to be recorded direct proceedings to be taken for the recovery of the sum due as if it were an arrear of land revenue before or at the same time the proceedings are taken for sale of the goodsthe only provisions which relate to the recovery are contained in Section 3 and Section 4 of the Act. Section 4 is aimed at protecting the interest of the State Government, Corporation, etc. and the only limited protection that is available to the borrower or to the guarantor is comprised inion (2) of Sectionis only one stage at which the Authorised officer is obliged to apply his mind in regard to the person from whom the amount is to be recovered and the exact sum due to be recovered from the person named in the certificate. The Collector on receipt of the certificate is invested with a limited power to make an inquiry touching the contents of the certificate. The Collector who is expected to recover the sum due as arrears of land revenue is not empowered to travel beyond the particulars furnished in theview of this disclosure made by the applicant before the respondent no.3 notices came to be issued and served on the present petitioner. The petitioner had objected to the proceedings being taken against him for recovery of the arrears of higher purchase loan amount. The impugned order records the reasons for rejection of the petitioners objection in paragraph 5 and 12. The reasons are:(1) That the petitioner is the brother of the borrower,(2) That the petitioner has failed to provide and furnish details of the movable and/or immovable property of the borrower,(3) That the petitioner has notin the proceedings. For the reasons stated herein above, the respondent No.3 has held the petitioner liable to pay the amount and directed recovery of the same from the petitioner as arrears of landthe submission is that in the absence of a certificate being issued by the Authorised officer it is impermissible for the Collector and it would be beyond his power and authority to proceed against the petitioner and hold him liable to pay a given sum of money and direct the recovery of that amount as arrears of land revenue. The submission is well merited. The learned Counsel appearing for respondent no.1 has tried to contend that even in the absence of the certificate being issued by the Authorised officer of the State Government or the Corporation it would be open for the Collector to make an inquiry with a view to find out as to who others, in addition to the borrower, are liable for the payment of the amount due and if the Collector pursuant to such an inquiry reaches a conclusion that a given sum of money is due and recoverable either from the Guarantor or such other person, he can proceed to recover the amount from them as arrears of land revenue. We are afraid we cannot subscribe to thisthe scheme of the Act, the Collector has been named as a recovery officer with a limited jurisdiction and the jurisdiction to initiate inquiry would be dependent upon the existence of validly issued certificate by an Authorised officer, furnishing the particulars as required under the rules in the form prescribed. In the absence of a certificate being issued against a given person, stipulating a definite sum of amount due, the Collector in the midst of an inquiry against the borrower cannot proceed against third party which is not named in the certificate and in regard to whom no particulars are furnished to the Collector. Absence of the particulars to be furnished in the certificate would not even enable the Collector to make a proper inquiry. The application of mind by a responsible officer is only at one stage i.e. when a certificate is issued by the authorised officer of the State Government or the Corporation. There are hardly any safeguards for the borrower or the Guarantors in the scheme of the Act. The only safeguard against a drastic power of recovery is application of mind by the Authorised officer while issuing the certificate. If this be the position, we have no hesitation in holding that the requirement for issuing a certificate of recovery by the Authorised officer is sine qua non for initiation of the inquiry by the Collector under Section 3(2) of the Act. In the absence of a certificate as contemplated by Section 3,1, the Collector would have no jurisdiction to make an inquiry. The respondent no.3 cannot fasten any liability on the petitioner and direct the recovery of a sum purportedly due from him in the absence of a certificate issued by the Authorised officer.10.In the result, in our view, the impugned order passed by the Collector dated 25/02/2002 in case No.DROis wholly unsustainable in law being without jurisdiction and thus deserves to be quashed and set aside.
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Dasari Siva Prasad Reddy Vs. Public Prosecutor, High Court Of A.P | view of the clarification given by PW9 himself. Therefore, we shall assume that the murder had taken place on the night of 19th April or in the early hours of 20th April. 21. In drawing an inference that the accused must have been in the house on the crucial night, the High Court mainly relied on the evidence of PW4 and also relied on the fact that the accused set up a false plea of alibi. As already noticed, the evidence of PW4 was to the effect that he saw the accused entering his house at about 8.30 p.m. on 19th April, 1996. He also spoke to the fact that he observed some quarrel going on between the husband and the wife beyond 10 p.m. The High Court repelled the contention that the police examined PW4 three months after the incident on a wrong assumption that PW8 - the Head Constable, initially examined PW4 after the case was registered. But, it is clear from the evidence of PW8 that he did not examine PW4, PW10 also clarified that he examined PW4 once only i.e. on 15.7.1996.There is absolutely no reason why PW4 who was admittedly related to the deceased and who was in the house of the accused soon after the incident, did not come forward to give the statement about the facts observed by him. There is no reason to think that the police would not have examined him immediately if he was the person who had seen the deceased last in the company of the accused on the night of 19th April, 1996. Moreover, PW4 came forward with an improbable version that he observed the quarrel from his house which is separated by four or five houses from the house of the accused. PW10 - the I.O. categorically stated that PW4 did not tell him that at 10 p.m. he observed the quarrel at the house of the accused. That means, PW4 did not hesitate to go to any extent to help the prosecution to substantiate the last seen version. The High Court dismissed the criticism against PW4s evidence by merely observing that there was no reason for him to falsely implicate the accused. We are of the view that the High Court should not have upset the finding of the trial Court in regard to the credibility of evidence of PW4 and buttress its conclusion on the last seen factor by relying on PW4s evidence. As far as PW5 is concerned, the High Court concurred with the trial Courts view that his evidence cannot be believed. 22. The High Court then observed that since the plea of alibi is found to be false, it can be inferred that the accused was present in the house in the night of 19.4.1996. The High Court after adverting to the observations in Prabhakar vs. State of Maharashtra (1982) 1 SCC 426 ) drew the further inference that only the accused and the deceased were in the house at the relevant time and there was no possibility for others to enter into the house. These observations were primarily based on the unreliable evidence of PW4. The High Courts approach in seeking support from the decision in Prabhakars case is clearly unsustainable. The facts and circumstances in that case unerringly pointed to the presence of the accused at the crucial time and there was no possibility of third person being there. The inferences drawn in that case cannot therefore be pressed into service here. If we exclude PW4s evidence, there is no evidence whatsoever to establish the presence of the accused in the house on the crucial night. The fact that the appellant could not establish by cogent evidence that on the night of 19th April, 1996 he remained at the house of his parents in another village does not lead to the necessary inference that the appellant must have remained at his house on the night of 19th April, 1996. 23. However, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW3s evidence which was believed by the trial Court, the appellant contacted him in the morning at 6 a.m. and brought PW3 to his house giving a hint that something untoward happened to his sister (i.e. the deceased). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal. 24. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between may be true and must be true shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court. | 1[ds]There is no reason to think that the police would not have examined him immediately if he was the person who had seen the deceased last in the company of the accused on the night of 19th April, 1996. Moreover, PW4 came forward with an improbable version that he observed the quarrel from his house which is separated by four or five houses from the house of the accused. PW10 - the I.O. categorically stated that PW4 did not tell him that at 10 p.m. he observed the quarrel at the house of the accused. That means, PW4 did not hesitate to go to any extent to help the prosecution to substantiate the last seen version. The High Court dismissed the criticism against PW4s evidence by merely observing that there was no reason for him to falsely implicate the accused. We are of the view that the High Court should not have upset the finding of the trial Court in regard to the credibility of evidence of PW4 and buttress its conclusion on the last seen factor by relying on PW4s evidence. As far as PW5 is concerned, the High Court concurred with the trial Courts view that his evidence cannot be believed.A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between may be true and must be true shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the Highobservations were primarily based on the unreliable evidence of PW4. The High Courts approach in seeking support from the decision in Prabhakars case is clearly unsustainable. The facts and circumstances in that case unerringly pointed to the presence of the accused at the crucial time and there was no possibility of third person being there. The inferences drawn in that case cannot therefore be pressed into service here. If we exclude PW4s evidence, there is no evidence whatsoever to establish the presence of the accused in the house on the crucial night. The fact that the appellant could not establish by cogent evidence that on the night of 19th April, 1996 he remained at the house of his parents in another village does not lead to the necessary inference that the appellant must have remained at his house on the night of 19th April,to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal. | 1 | 3,621 | 676 | ### Instruction:
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view of the clarification given by PW9 himself. Therefore, we shall assume that the murder had taken place on the night of 19th April or in the early hours of 20th April. 21. In drawing an inference that the accused must have been in the house on the crucial night, the High Court mainly relied on the evidence of PW4 and also relied on the fact that the accused set up a false plea of alibi. As already noticed, the evidence of PW4 was to the effect that he saw the accused entering his house at about 8.30 p.m. on 19th April, 1996. He also spoke to the fact that he observed some quarrel going on between the husband and the wife beyond 10 p.m. The High Court repelled the contention that the police examined PW4 three months after the incident on a wrong assumption that PW8 - the Head Constable, initially examined PW4 after the case was registered. But, it is clear from the evidence of PW8 that he did not examine PW4, PW10 also clarified that he examined PW4 once only i.e. on 15.7.1996.There is absolutely no reason why PW4 who was admittedly related to the deceased and who was in the house of the accused soon after the incident, did not come forward to give the statement about the facts observed by him. There is no reason to think that the police would not have examined him immediately if he was the person who had seen the deceased last in the company of the accused on the night of 19th April, 1996. Moreover, PW4 came forward with an improbable version that he observed the quarrel from his house which is separated by four or five houses from the house of the accused. PW10 - the I.O. categorically stated that PW4 did not tell him that at 10 p.m. he observed the quarrel at the house of the accused. That means, PW4 did not hesitate to go to any extent to help the prosecution to substantiate the last seen version. The High Court dismissed the criticism against PW4s evidence by merely observing that there was no reason for him to falsely implicate the accused. We are of the view that the High Court should not have upset the finding of the trial Court in regard to the credibility of evidence of PW4 and buttress its conclusion on the last seen factor by relying on PW4s evidence. As far as PW5 is concerned, the High Court concurred with the trial Courts view that his evidence cannot be believed. 22. The High Court then observed that since the plea of alibi is found to be false, it can be inferred that the accused was present in the house in the night of 19.4.1996. The High Court after adverting to the observations in Prabhakar vs. State of Maharashtra (1982) 1 SCC 426 ) drew the further inference that only the accused and the deceased were in the house at the relevant time and there was no possibility for others to enter into the house. These observations were primarily based on the unreliable evidence of PW4. The High Courts approach in seeking support from the decision in Prabhakars case is clearly unsustainable. The facts and circumstances in that case unerringly pointed to the presence of the accused at the crucial time and there was no possibility of third person being there. The inferences drawn in that case cannot therefore be pressed into service here. If we exclude PW4s evidence, there is no evidence whatsoever to establish the presence of the accused in the house on the crucial night. The fact that the appellant could not establish by cogent evidence that on the night of 19th April, 1996 he remained at the house of his parents in another village does not lead to the necessary inference that the appellant must have remained at his house on the night of 19th April, 1996. 23. However, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW3s evidence which was believed by the trial Court, the appellant contacted him in the morning at 6 a.m. and brought PW3 to his house giving a hint that something untoward happened to his sister (i.e. the deceased). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal. 24. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between may be true and must be true shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court.
### Response:
1
### Explanation:
There is no reason to think that the police would not have examined him immediately if he was the person who had seen the deceased last in the company of the accused on the night of 19th April, 1996. Moreover, PW4 came forward with an improbable version that he observed the quarrel from his house which is separated by four or five houses from the house of the accused. PW10 - the I.O. categorically stated that PW4 did not tell him that at 10 p.m. he observed the quarrel at the house of the accused. That means, PW4 did not hesitate to go to any extent to help the prosecution to substantiate the last seen version. The High Court dismissed the criticism against PW4s evidence by merely observing that there was no reason for him to falsely implicate the accused. We are of the view that the High Court should not have upset the finding of the trial Court in regard to the credibility of evidence of PW4 and buttress its conclusion on the last seen factor by relying on PW4s evidence. As far as PW5 is concerned, the High Court concurred with the trial Courts view that his evidence cannot be believed.A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between may be true and must be true shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the Highobservations were primarily based on the unreliable evidence of PW4. The High Courts approach in seeking support from the decision in Prabhakars case is clearly unsustainable. The facts and circumstances in that case unerringly pointed to the presence of the accused at the crucial time and there was no possibility of third person being there. The inferences drawn in that case cannot therefore be pressed into service here. If we exclude PW4s evidence, there is no evidence whatsoever to establish the presence of the accused in the house on the crucial night. The fact that the appellant could not establish by cogent evidence that on the night of 19th April, 1996 he remained at the house of his parents in another village does not lead to the necessary inference that the appellant must have remained at his house on the night of 19th April,to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal.
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The Agricultural Produce Marketing Committee Bangalore Vs. The State of Karnataka & Ors | can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non- payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. We wish to emphasise that this Court has opined that all judgments rendered on the basis of Pune Municipal Corporation Vs. Harakchand Misirimal Solanki [(2014) 3 SCC 183] are overruled in view of the interpretation made to Section 24(2) of the Act, 2013, in Indore Development Authority (supra). There has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications. Such land owners may have had the benefit of interim orders of stay of further proceedings in the acquisition process or dispossession resulting in a delay in the making of the award and payment/deposit of the compensation and consequently in taking over possession of the acquired land. There being a delay in the passing of the award owing to interim orders granted by the High Court or even by the civil courts, where suits may have been filed against acquiring bodies, the land owners cannot now take advantage of the same so as to contend that no award has been made and consequently there has been no payment or deposit of the compensation and that possession of the acquired land continues with them. The land owners having had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition cannot take benefit under Section 24(2) of the Act, 2013. The High Court or the civil courts which may have granted interim orders in favour of the land owners, ought to consider the aforesaid aspect before applying Section 24(2) of the Act, 2013 in favour of the land owners. 10. Applying the law laid down by this Court in the case of Indore Development Authority (supra) to the facts of the case on hand, the view taken by the High Court while declaring the acquisition proceedings have lapsed under sub--section (2) of section 24 of the Act, 2013, is unsustainable and is just contrary to the law laid down by this Court in the case Indore Development Authority (supra). Even the same is also not disputed by Shri C. U. Singh, learned Senior Advocate appearing on behalf of the original writ petitioners – original land owners. Therefore, the common judgment and order passed by the High Court allowing the writ petitions and declaring that the acquisition proceedings with respect to the lands in question have lapsed under sub--section (2) of section 24 of the Act, 2013 cannot stand and the same deserve to be quashed and set aside. 11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under sub--section (2) of section 24 of the Act, 2013. At the cost of repetition, we observe that the High Court ought to have adjudicated on all the issues raised and ought not to have decided and disposed of the writ petitions, adjudicating only on one issue which has been found to be erroneous. The Division Bench has also not applied its mind to this aspect of the matter and has simply dismissed the appeals filed by the appellant herein. | 1[ds]Despite the fact that a number of issues/grounds were raised before the High Court on the legality and validity of the acquisition proceedings, the learned Single Judge decided only one issue, namely, whether the acquisition proceedings have lapsed by virtue of the 2013 Act. Whereas a number of issues/grounds were raised and as such the original reliefs sought (acquisition proceedings under Act 1894) were the main reliefs which were required to be dealt with and considered, unfortunately, the learned Single Judge did not give findings on the other issues/grounds and on the reliefs sought and as observed hereinabove, disposed of the writ petitions considering only one relief/ground, namely, whether the acquisition proceedings have lapsed by virtue of the 2013 Act. When a number of submissions were made on the other issues/grounds, we are of the opinion that the High Court ought to have considered the other issues and ought to have given the findings on other issues also. Because of not deciding the other issues and deciding the matter only on one issue and thereafter when the decision on such one issue, is held to be bad in law for the reasons stated hereinbelow, this Court has no other alternative but to remand the matters to the learned Single Judge for deciding the Writ Petitions afresh on all other issues.8.3 By way of analogy we observe that while considering Order 14 Rule 2 (as amended w.e.f. 01.02.1977), this Court in the case of Nusli Neville Wadia Vs. Ivory Properties & Ors, (2020) 6 SCC 557, has observed and held that after the amendment w.e.f. 01.02.1977, though Order 14 Rule 2(2) enables the court to decide the issue of law as a preliminary issue in case the same relates to (i) jurisdiction of court or (ii) a bar to suit created by any law for the time being in force, a departure has been made in amended provision whereby now it mandates the court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. It is further observed that intendment behind this departure is to avoid remand in an appealable case for deciding other issues.9. Now, so far as the impugned common judgment and order passed by the High Court declaring that the acquisition proceedings have lapsed under sub--section (2) of Section 24 of the Act, 2013, is concerned, the same is unsustainable in view of the decision of the Constitution bench of this Court in the case of Indore Development Authority (supra). This Court has concluded in paragraph 365 and 366 as under: -365. Resultantly, the decision rendered in Pune Municipal Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] is hereby overruled and all other decisions in which Pune Municipal Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Assn. [Sree Balaji Nagar Residential Assn. v. State of T.N., (2015) 3 SCC 353 : (2015) 2 SCC (Civ) 298] cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra [Indore Development Authority v. Shailendra, (2018) 3 SCC 412 : (2018) 2 SCC (Civ) 426] , the aspect with respect to the proviso to Section 24(2) and whether or has to be read as nor or as and was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment.366. In view of the aforesaid discussion, we answer the questions as under:366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non- payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.We wish to emphasise that this Court has opined that all judgments rendered on the basis of Pune Municipal Corporation Vs. Harakchand Misirimal Solanki [(2014) 3 SCC 183] are overruled in view of the interpretation made to Section 24(2) of the Act, 2013, in Indore Development Authority (supra). There has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications. Such land owners may have had the benefit of interim orders of stay of further proceedings in the acquisition process or dispossession resulting in a delay in the making of the award and payment/deposit of the compensation and consequently in taking over possession of the acquired land. There being a delay in the passing of the award owing to interim orders granted by the High Court or even by the civil courts, where suits may have been filed against acquiring bodies, the land owners cannot now take advantage of the same so as to contend that no award has been made and consequently there has been no payment or deposit of the compensation and that possession of the acquired land continues with them. The land owners having had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition cannot take benefit under Section 24(2) of the Act, 2013. The High Court or the civil courts which may have granted interim orders in favour of the land owners, ought to consider the aforesaid aspect before applying Section 24(2) of the Act, 2013 in favour of the land owners.10. Applying the law laid down by this Court in the case of Indore Development Authority (supra) to the facts of the case on hand, the view taken by the High Court while declaring the acquisition proceedings have lapsed under sub--section (2) of section 24 of the Act, 2013, is unsustainable and is just contrary to the law laid down by this Court in the case Indore Development Authority (supra). Even the same is also not disputed by Shri C. U. Singh, learned Senior Advocate appearing on behalf of the original writ petitioners – original land owners. Therefore, the common judgment and order passed by the High Court allowing the writ petitions and declaring that the acquisition proceedings with respect to the lands in question have lapsed under sub--section (2) of section 24 of the Act, 2013 cannot stand and the same deserve to be quashed and set aside.11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under sub--section (2) of section 24 of the Act, 2013. At the cost of repetition, we observe that the High Court ought to have adjudicated on all the issues raised and ought not to have decided and disposed of the writ petitions, adjudicating only on one issue which has been found to be erroneous. The Division Bench has also not applied its mind to this aspect of the matter and has simply dismissed the appeals filed by the appellant herein. | 1 | 6,909 | 2,201 | ### 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:
can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non- payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. We wish to emphasise that this Court has opined that all judgments rendered on the basis of Pune Municipal Corporation Vs. Harakchand Misirimal Solanki [(2014) 3 SCC 183] are overruled in view of the interpretation made to Section 24(2) of the Act, 2013, in Indore Development Authority (supra). There has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications. Such land owners may have had the benefit of interim orders of stay of further proceedings in the acquisition process or dispossession resulting in a delay in the making of the award and payment/deposit of the compensation and consequently in taking over possession of the acquired land. There being a delay in the passing of the award owing to interim orders granted by the High Court or even by the civil courts, where suits may have been filed against acquiring bodies, the land owners cannot now take advantage of the same so as to contend that no award has been made and consequently there has been no payment or deposit of the compensation and that possession of the acquired land continues with them. The land owners having had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition cannot take benefit under Section 24(2) of the Act, 2013. The High Court or the civil courts which may have granted interim orders in favour of the land owners, ought to consider the aforesaid aspect before applying Section 24(2) of the Act, 2013 in favour of the land owners. 10. Applying the law laid down by this Court in the case of Indore Development Authority (supra) to the facts of the case on hand, the view taken by the High Court while declaring the acquisition proceedings have lapsed under sub--section (2) of section 24 of the Act, 2013, is unsustainable and is just contrary to the law laid down by this Court in the case Indore Development Authority (supra). Even the same is also not disputed by Shri C. U. Singh, learned Senior Advocate appearing on behalf of the original writ petitioners – original land owners. Therefore, the common judgment and order passed by the High Court allowing the writ petitions and declaring that the acquisition proceedings with respect to the lands in question have lapsed under sub--section (2) of section 24 of the Act, 2013 cannot stand and the same deserve to be quashed and set aside. 11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under sub--section (2) of section 24 of the Act, 2013. At the cost of repetition, we observe that the High Court ought to have adjudicated on all the issues raised and ought not to have decided and disposed of the writ petitions, adjudicating only on one issue which has been found to be erroneous. The Division Bench has also not applied its mind to this aspect of the matter and has simply dismissed the appeals filed by the appellant herein.
### Response:
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### Explanation:
under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non- payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.We wish to emphasise that this Court has opined that all judgments rendered on the basis of Pune Municipal Corporation Vs. Harakchand Misirimal Solanki [(2014) 3 SCC 183] are overruled in view of the interpretation made to Section 24(2) of the Act, 2013, in Indore Development Authority (supra). There has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications. Such land owners may have had the benefit of interim orders of stay of further proceedings in the acquisition process or dispossession resulting in a delay in the making of the award and payment/deposit of the compensation and consequently in taking over possession of the acquired land. There being a delay in the passing of the award owing to interim orders granted by the High Court or even by the civil courts, where suits may have been filed against acquiring bodies, the land owners cannot now take advantage of the same so as to contend that no award has been made and consequently there has been no payment or deposit of the compensation and that possession of the acquired land continues with them. The land owners having had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition cannot take benefit under Section 24(2) of the Act, 2013. The High Court or the civil courts which may have granted interim orders in favour of the land owners, ought to consider the aforesaid aspect before applying Section 24(2) of the Act, 2013 in favour of the land owners.10. Applying the law laid down by this Court in the case of Indore Development Authority (supra) to the facts of the case on hand, the view taken by the High Court while declaring the acquisition proceedings have lapsed under sub--section (2) of section 24 of the Act, 2013, is unsustainable and is just contrary to the law laid down by this Court in the case Indore Development Authority (supra). Even the same is also not disputed by Shri C. U. Singh, learned Senior Advocate appearing on behalf of the original writ petitioners – original land owners. Therefore, the common judgment and order passed by the High Court allowing the writ petitions and declaring that the acquisition proceedings with respect to the lands in question have lapsed under sub--section (2) of section 24 of the Act, 2013 cannot stand and the same deserve to be quashed and set aside.11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under sub--section (2) of section 24 of the Act, 2013. At the cost of repetition, we observe that the High Court ought to have adjudicated on all the issues raised and ought not to have decided and disposed of the writ petitions, adjudicating only on one issue which has been found to be erroneous. The Division Bench has also not applied its mind to this aspect of the matter and has simply dismissed the appeals filed by the appellant herein.
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Ernakulam Mills Limited Vs. State of Kerala | the Government to reconvey the land acquired by it to the appellant.5. To begin with reliance was placed on Ext. P-1 which is the starting point of the correspondence between the appellant and the Government. This document is a letter dated January 13, 1947 and appears at p. 5 of the printed Paper Book. The relevant part of this letter may be quoted thus :The proposal to acquire all the lands in the area involved has been confirmed. But, portions of high level parambas not required for the road, footpaths, drains, etc. to be constructed, are proposed to be returned to the present owners after the reclamation is over, after realising from them the compensation which will be paid to them for the acquisition of the land, inclusive of 15 per cent solatium and the proportionate costs of reclamation and any other items of expenditure which may have to be incurred in the course of reclamation. This will not, however, apply to lands which Government consider, are marshy or paddy fields for portions laying to the west of the road. The Diwan Peishkar has been instructed to inform the owners of the high level parambas accordingly.A perusal of this letter would clearly reveal the fact that the letter is nothing more than a mere proposal or a hint throne by the Government to the appellant that in case the Government did not require the land the same be returned to the owners. Dr. Seyid Muhammad laid great stress on the two statements made in this letter. In the first place he submitted that it was clearly stated that portions of high level parambas would not be required for the roads and secondly that the Diwan Peishkar had been instructed to inform the owners of high level parambas accordingly, from which is could be spelt out that the Government had made up its mind to return the lands situated on a higher level such as the land of the appellant. We are, however, unable to agree with the contention put forward by the learned Counsel for the appellant. The first part of the letter makes the stand of the Government clear namely that the final orders of the Government regarding the procedure for acquisition had been passed. A hint was, however, thrown that if the high level parambas, etc. were not required they might be returned. We are unable to find any promise or commitment on the part of the Government to recovery the lands acquired by it.6. Another letter on which reliance was placed on Ext. P-6 which is at p. 18 of the printed Paper Book. This letter was written by the appellant to the District Collector, Ernakulam. Reliance was placed on the third paragraph of this letter which runs thus :It was agreed at the time of acquisition that the area acquired from us would be returned to us soon after the work of the road was over. So, even though the compensation paid was very low, we did not appeal against the award.This was undoubtedly a statement made by the appellant in his own favour and was actually based on the letter Ext. P-1 which was constructed by the appellant to be an agreement. This letter, however, cannot bind the Government unless there was a clear or solemn promise on the part of the Government to reconvey the lands acquired by it.7. Exhibit P-2 which is a letter written by the Collector, Ernakulam, to the appellant clearly shows that the Government had made no commitment to reconvey the land at any time. This letter which was sent in reply to Ext. P-6 runs thus :I am to inform you that your request can be considered only after the completion of the work of the Foreshore area. I, therefore, request you to renew the request in June, 1960.The Collector has carefully chosen the words to indicate that the request of the appellant would be considered after the completion of the work of the Foreshore area. There was thus neither any promise nor any representation.8. Another letter on which reliance was placed is Ext. P-7 a letter written by the appellant to the District Collect, Ernakulam, in which the appellant itself renewed its request to arrange for the return of the land acquired. One important feature of this letter is that is that the appellant itself understood the correspondence between it and the Government as a bare proposal. The words used by the appellant, namely, "He replied to us saying that the matter was only receiving the attention of the Government and there was no promise made by the Government regarding reconveyancing of the land.9. This is all the evidence that was relied upon by the learned Counsel for the appellant in support of his plea that a promissory estoppel was made out in this case. We are, however, unable to accept the contention of the appellant that there was at any time any promise or agreement made between the appellant and the Government for reconveying the land. Thus the position is that the land was acquired by the Government as far back as 1947. The award was made by the Collector but the appellant for some reason or the other imagined that there was an express promise or an implied agreement to reconvey the land and did not move the Collector for making a reference to the Court for determining the compensation. If the appellant did not move in this matter it was because he suffered from groundless misconception of fact which was of the appellants own making and therefore it could not be allowed to take advantage of its own lapse. Thus that would be no ground for holding that any promise was made by the Government. The Government never prevented the appellant from approaching the Collector for making a reference to the Court for determining the compensation and if the appellant appeared to be overconscious of his rights he is to blame himself if he fails. | 0[ds]Having gone through the various letters placed before us by the learned for the appellant, we are unable to hold that these letters make out a case of any agreement or a promise on the part of the Government to reconvey the land acquired by it to the appellant.5. To begin with reliance was placed on Ext.which is the starting point of the correspondence between the appellant and the Government. This document is a letter dated January 13, 1947 and appears at p. 5 of the printed Paper Book. The relevant part of this letter may be quoted thus :The proposal to acquire all the lands in the area involved has been confirmed. But, portions of high level parambas not required for the road, footpaths, drains, etc. to be constructed, are proposed to be returned to the present owners after the reclamation is over, after realising from them the compensation which will be paid to them for the acquisition of the land, inclusive of 15 per cent solatium and the proportionate costs of reclamation and any other items of expenditure which may have to be incurred in the course of reclamation. This will not, however, apply to lands which Government consider, are marshy or paddy fields for portions laying to the west of the road. The Diwan Peishkar has been instructed to inform the owners of the high level parambas accordingly.A perusal of this letter would clearly reveal the fact that the letter is nothing more than a mere proposal or a hint throne by the Government to the appellant that in case the Government did not require the land the same be returned to the owners. Dr. Seyid Muhammad laid great stress on the two statements made in this letter. In the first place he submitted that it was clearly stated that portions of high level parambas would not be required for the roads and secondly that the Diwan Peishkar had been instructed to inform the owners of high level parambas accordingly, from which is could be spelt out that the Government had made up its mind to return the lands situated on a higher level such as the land of the appellant. We are, however, unable to agree with the contention put forward by the learned Counsel for the appellant. The first part of the letter makes the stand of the Government clear namely that the final orders of the Government regarding the procedure for acquisition had been passed. A hint was, however, thrown that if the high level parambas, etc. were not required they might be returned. We are unable to find any promise or commitment on the part of the Government to recovery the lands acquired by it.6. Another letter on which reliance was placed on Ext.which is at p. 18 of the printed Paper Book. This letter was written by the appellant to the District Collector, Ernakulam. Reliance was placed on the third paragraph of this letter which runs thus :It was agreed at the time of acquisition that the area acquired from us would be returned to us soon after the work of the road was over. So, even though the compensation paid was very low, we did not appeal against the award.This was undoubtedly a statement made by the appellant in his own favour and was actually based on the letter Ext.which was constructed by the appellant to be an agreement. This letter, however, cannot bind the Government unless there was a clear or solemn promise on the part of the Government to reconvey the lands acquired by it.7. Exhibitwhich is a letter written by the Collector, Ernakulam, to the appellant clearly shows that the Government had made no commitment to reconvey the land at any time. This letter which was sent in reply to Ext.runs thus :I am to inform you that your request can be considered only after the completion of the work of the Foreshore area. I, therefore, request you to renew the request in June, 1960.The Collector has carefully chosen the words to indicate that the request of the appellant would be considered after the completion of the work of the Foreshore area. There was thus neither any promise nor any representation.8. Another letter on which reliance was placed is Ext.a letter written by the appellant to the District Collect, Ernakulam, in which the appellant itself renewed its request to arrange for the return of the land acquired. One important feature of this letter is that is that the appellant itself understood the correspondence between it and the Government as a bare proposal. The words used by the appellant, namely, "He replied to us saying that the matter was only receiving the attention of the Government and there was no promise made by the Government regarding reconveyancing of the land.9. This is all the evidence that was relied upon by the learned Counsel for the appellant in support of his plea that a promissory estoppel was made out in this case. We are, however, unable to accept the contention of the appellant that there was at any time any promise or agreement made between the appellant and the Government for reconveying the land. Thus the position is that the land was acquired by the Government as far back as 1947. The award was made by the Collector but the appellant for some reason or the other imagined that there was an express promise or an implied agreement to reconvey the land and did not move the Collector for making a reference to the Court for determining the compensation. If the appellant did not move in this matter it was because he suffered from groundless misconception of fact which was of the appellants own making and therefore it could not be allowed to take advantage of its own lapse. Thus that would be no ground for holding that any promise was made by the Government. The Government never prevented the appellant from approaching the Collector for making a reference to the Court for determining the compensation and if the appellant appeared to be overconscious of his rights he is to blame himself if he fails. | 0 | 1,688 | 1,102 | ### 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 Government to reconvey the land acquired by it to the appellant.5. To begin with reliance was placed on Ext. P-1 which is the starting point of the correspondence between the appellant and the Government. This document is a letter dated January 13, 1947 and appears at p. 5 of the printed Paper Book. The relevant part of this letter may be quoted thus :The proposal to acquire all the lands in the area involved has been confirmed. But, portions of high level parambas not required for the road, footpaths, drains, etc. to be constructed, are proposed to be returned to the present owners after the reclamation is over, after realising from them the compensation which will be paid to them for the acquisition of the land, inclusive of 15 per cent solatium and the proportionate costs of reclamation and any other items of expenditure which may have to be incurred in the course of reclamation. This will not, however, apply to lands which Government consider, are marshy or paddy fields for portions laying to the west of the road. The Diwan Peishkar has been instructed to inform the owners of the high level parambas accordingly.A perusal of this letter would clearly reveal the fact that the letter is nothing more than a mere proposal or a hint throne by the Government to the appellant that in case the Government did not require the land the same be returned to the owners. Dr. Seyid Muhammad laid great stress on the two statements made in this letter. In the first place he submitted that it was clearly stated that portions of high level parambas would not be required for the roads and secondly that the Diwan Peishkar had been instructed to inform the owners of high level parambas accordingly, from which is could be spelt out that the Government had made up its mind to return the lands situated on a higher level such as the land of the appellant. We are, however, unable to agree with the contention put forward by the learned Counsel for the appellant. The first part of the letter makes the stand of the Government clear namely that the final orders of the Government regarding the procedure for acquisition had been passed. A hint was, however, thrown that if the high level parambas, etc. were not required they might be returned. We are unable to find any promise or commitment on the part of the Government to recovery the lands acquired by it.6. Another letter on which reliance was placed on Ext. P-6 which is at p. 18 of the printed Paper Book. This letter was written by the appellant to the District Collector, Ernakulam. Reliance was placed on the third paragraph of this letter which runs thus :It was agreed at the time of acquisition that the area acquired from us would be returned to us soon after the work of the road was over. So, even though the compensation paid was very low, we did not appeal against the award.This was undoubtedly a statement made by the appellant in his own favour and was actually based on the letter Ext. P-1 which was constructed by the appellant to be an agreement. This letter, however, cannot bind the Government unless there was a clear or solemn promise on the part of the Government to reconvey the lands acquired by it.7. Exhibit P-2 which is a letter written by the Collector, Ernakulam, to the appellant clearly shows that the Government had made no commitment to reconvey the land at any time. This letter which was sent in reply to Ext. P-6 runs thus :I am to inform you that your request can be considered only after the completion of the work of the Foreshore area. I, therefore, request you to renew the request in June, 1960.The Collector has carefully chosen the words to indicate that the request of the appellant would be considered after the completion of the work of the Foreshore area. There was thus neither any promise nor any representation.8. Another letter on which reliance was placed is Ext. P-7 a letter written by the appellant to the District Collect, Ernakulam, in which the appellant itself renewed its request to arrange for the return of the land acquired. One important feature of this letter is that is that the appellant itself understood the correspondence between it and the Government as a bare proposal. The words used by the appellant, namely, "He replied to us saying that the matter was only receiving the attention of the Government and there was no promise made by the Government regarding reconveyancing of the land.9. This is all the evidence that was relied upon by the learned Counsel for the appellant in support of his plea that a promissory estoppel was made out in this case. We are, however, unable to accept the contention of the appellant that there was at any time any promise or agreement made between the appellant and the Government for reconveying the land. Thus the position is that the land was acquired by the Government as far back as 1947. The award was made by the Collector but the appellant for some reason or the other imagined that there was an express promise or an implied agreement to reconvey the land and did not move the Collector for making a reference to the Court for determining the compensation. If the appellant did not move in this matter it was because he suffered from groundless misconception of fact which was of the appellants own making and therefore it could not be allowed to take advantage of its own lapse. Thus that would be no ground for holding that any promise was made by the Government. The Government never prevented the appellant from approaching the Collector for making a reference to the Court for determining the compensation and if the appellant appeared to be overconscious of his rights he is to blame himself if he fails.
### Response:
0
### Explanation:
a case of any agreement or a promise on the part of the Government to reconvey the land acquired by it to the appellant.5. To begin with reliance was placed on Ext.which is the starting point of the correspondence between the appellant and the Government. This document is a letter dated January 13, 1947 and appears at p. 5 of the printed Paper Book. The relevant part of this letter may be quoted thus :The proposal to acquire all the lands in the area involved has been confirmed. But, portions of high level parambas not required for the road, footpaths, drains, etc. to be constructed, are proposed to be returned to the present owners after the reclamation is over, after realising from them the compensation which will be paid to them for the acquisition of the land, inclusive of 15 per cent solatium and the proportionate costs of reclamation and any other items of expenditure which may have to be incurred in the course of reclamation. This will not, however, apply to lands which Government consider, are marshy or paddy fields for portions laying to the west of the road. The Diwan Peishkar has been instructed to inform the owners of the high level parambas accordingly.A perusal of this letter would clearly reveal the fact that the letter is nothing more than a mere proposal or a hint throne by the Government to the appellant that in case the Government did not require the land the same be returned to the owners. Dr. Seyid Muhammad laid great stress on the two statements made in this letter. In the first place he submitted that it was clearly stated that portions of high level parambas would not be required for the roads and secondly that the Diwan Peishkar had been instructed to inform the owners of high level parambas accordingly, from which is could be spelt out that the Government had made up its mind to return the lands situated on a higher level such as the land of the appellant. We are, however, unable to agree with the contention put forward by the learned Counsel for the appellant. The first part of the letter makes the stand of the Government clear namely that the final orders of the Government regarding the procedure for acquisition had been passed. A hint was, however, thrown that if the high level parambas, etc. were not required they might be returned. We are unable to find any promise or commitment on the part of the Government to recovery the lands acquired by it.6. Another letter on which reliance was placed on Ext.which is at p. 18 of the printed Paper Book. This letter was written by the appellant to the District Collector, Ernakulam. Reliance was placed on the third paragraph of this letter which runs thus :It was agreed at the time of acquisition that the area acquired from us would be returned to us soon after the work of the road was over. So, even though the compensation paid was very low, we did not appeal against the award.This was undoubtedly a statement made by the appellant in his own favour and was actually based on the letter Ext.which was constructed by the appellant to be an agreement. This letter, however, cannot bind the Government unless there was a clear or solemn promise on the part of the Government to reconvey the lands acquired by it.7. Exhibitwhich is a letter written by the Collector, Ernakulam, to the appellant clearly shows that the Government had made no commitment to reconvey the land at any time. This letter which was sent in reply to Ext.runs thus :I am to inform you that your request can be considered only after the completion of the work of the Foreshore area. I, therefore, request you to renew the request in June, 1960.The Collector has carefully chosen the words to indicate that the request of the appellant would be considered after the completion of the work of the Foreshore area. There was thus neither any promise nor any representation.8. Another letter on which reliance was placed is Ext.a letter written by the appellant to the District Collect, Ernakulam, in which the appellant itself renewed its request to arrange for the return of the land acquired. One important feature of this letter is that is that the appellant itself understood the correspondence between it and the Government as a bare proposal. The words used by the appellant, namely, "He replied to us saying that the matter was only receiving the attention of the Government and there was no promise made by the Government regarding reconveyancing of the land.9. This is all the evidence that was relied upon by the learned Counsel for the appellant in support of his plea that a promissory estoppel was made out in this case. We are, however, unable to accept the contention of the appellant that there was at any time any promise or agreement made between the appellant and the Government for reconveying the land. Thus the position is that the land was acquired by the Government as far back as 1947. The award was made by the Collector but the appellant for some reason or the other imagined that there was an express promise or an implied agreement to reconvey the land and did not move the Collector for making a reference to the Court for determining the compensation. If the appellant did not move in this matter it was because he suffered from groundless misconception of fact which was of the appellants own making and therefore it could not be allowed to take advantage of its own lapse. Thus that would be no ground for holding that any promise was made by the Government. The Government never prevented the appellant from approaching the Collector for making a reference to the Court for determining the compensation and if the appellant appeared to be overconscious of his rights he is to blame himself if he fails.
|
Chandrasingh Manibhai & Others Vs. Surjit Lal Ladhamal Chhabda & Others | Act, 1882.(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.Explanation -In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-s. (2), he makes an application to the Court under sub s. (3) of S. 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the Court."6. This is the substantive section giving protection to the tenant against ejectment. Section 50 which occurs in Part IV dealing with miscellaneous matters is the repeal section. It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows :"Provided that all suits and proceedings(other than execution proceedings and appeals)between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applied, which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act ; and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings :Provided further that -(a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act ; and(b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act."7. The H. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210 : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12.8. | 1[ds]We are also not impressed with the argument of the learned counsel for the applts. that the H. C. wrongly reversed the finding of the trial Judge on the point that the resps. committed breaches of the terms of the lease. We should not however be taken to concur in all the reasons given by the H. C. for reversing thatH. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210 : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12. | 1 | 2,307 | 702 | ### 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:
Act, 1882.(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.Explanation -In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-s. (2), he makes an application to the Court under sub s. (3) of S. 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the Court."6. This is the substantive section giving protection to the tenant against ejectment. Section 50 which occurs in Part IV dealing with miscellaneous matters is the repeal section. It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows :"Provided that all suits and proceedings(other than execution proceedings and appeals)between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which Part III applied, which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act ; and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings :Provided further that -(a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act ; and(b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act."7. The H. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210 : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12.8.
### Response:
1
### Explanation:
We are also not impressed with the argument of the learned counsel for the applts. that the H. C. wrongly reversed the finding of the trial Judge on the point that the resps. committed breaches of the terms of the lease. We should not however be taken to concur in all the reasons given by the H. C. for reversing thatH. C. held that S. 50 merely provided for transfer of pending suits and proceedings to Courts given jurisdiction under the Act to hear their and that from its ambit execution proceedings and appeals were excluded because no question could arise of their being transferred from one Court to another and that an appeal being a continuation of the suit and in the nature of a re-hearing, the provisions of S. 12 should be applied to pending appeals. The opinion expressed by the D.B on the construction of Ss. 12 and 50 of the Act was questioned in Nilkanth v. Rasiklal, A. I. R. (36) 1949 Bom 210 : (I. L. R. (1949) Bom. 265 F. B ), and the matter was referred to a F. B The F. B. overruled the decision reached by the D. B. on the construction of S. 50 and observed that it was clear that in terms the provision of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are transferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in S. 50 of the Act. We are in respectful agreement with the view expressed by the F. B. On a plain reading of the language of Ss. 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed. The concluding words of S. 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction. Mr. Daphthary contended that the whole object of S. 50 was to make provision for transfer of pending cases to Courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that S. 12 of the Act which gives protection to tenants should be construed as having retrospective effect In our opinion, this contention is not sound. Section 50 cannot be described as a section providing merely for transfer of pending cases to Courts having jurisdiction to deal with them. It is on the other hand a repeal" section in the new statute. It repeals the two earlier statutes, and while repealing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the Courts having jurisdiction to hear them under S. 28 of the Act. We are also inclined to agree with the view of the F. B. that S. 12 is in terms prospective and not retrospective. Sub-section (2) clearly relates to suits which may be instituted after the Act comes into force. It cannot apply to suits which were already pending when the Act was put on the statute book. Sub-section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states in such suit" and not in any suit. such suit can only be a suit referred to in sub-ss. 2 and 3 of S. 12.
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Village Panchayat Calangute Vs. Additional Director Of Panchayat Ii | is a body corporate. If so it can sue or be sued. In that position Panchayat cannot be denuded of the right to move under Art. 226 of the Constitution when any of its legal right is infringed by the authorities including the Government.” 23. In High Court of M.P. v. Mahesh Prakash and others (1995) 1 SCC 203 , this Court considered several questions including the one whether the High Court has the locus to challenge the order passed on judicial side by filing a petition under Article 136 of the Constitution. While rejecting the decision of the High Court, this Court observed: “The order that the first respondent challenged in the writ petition filed by him before the High Court was an order passed by the High Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the appellant to move the High Court on its judicial side to consider the validity of the order passed by the High Court on the administrative side and issue a writ in that behalf. In the writ petition the first respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was, therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside. We find, therefore, no merit in what may be termed the preliminary objection to the maintainability of the appeal.” 24. In State of Orissa v. Union of India 1995 Supp. (2) SCC 154, the Court considered the question whether the State Government has locus standi to challenge the order passed by the Central Government in exercise of its revisional power under the Mineral Concession Rules, 1960. While answering the question in affirmative, this Court observed: “In this connection, it is necessary to note that in the first place, the State Government is not merely an authority subordinate to the Central Government which would, undoubtedly, be bound by the revisional orders of the superior authority. It is also the owner of the mines and minerals in question. If it is directed to issue a mining lease in favour of any party, it has locus standi to challenge that order under Article 226 of the Constitution of India.” 25. In Godde Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC 828 , this Court examined the issue of locus standi of a President of Panchayat Samithi to challenge the decision of the Government in the matter of location of Primary Health Centre and held: “Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental right can also approach the court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.Has the appellant a right to file the petition out of which the present appeal has arisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Center. The said committee collected Rs.10,000/- and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Center at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorized to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Art. 226 of the Constitution. This Court held in the decision cited supra that "ordinarily" the petitioner who seeks to file an application under Art. 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Art. 226 of the Constitution at his instance is, therefore, maintainable.” 26. By applying the ratio of the aforesaid judgments to the facts of these cases, we hold that the writ petitions filed by the appellant were maintainable and the learned Single Judge of the High Court committed grave error by summarily dismissing the same. We also declare that the contrary view expressed by the High Court in other judgments does not represent the correct legal position. | 1[ds]20. In this case, the appellant had entertained the complaint made by local residents, revoked occupancy certificate and also cancelled the permission granted to the company for raising construction. The resolution cancelling the permission was recalled apparently because the rules of natural justice had not been followed. Thereafter, the Sarpanch issued notice under Section 64 and directed the company to stop further construction. The company challenged the notice and succeeded in persuading respondent No.1 to pass an ex-parte interim order. The application made by the company for permission to use the property for running a Guest House was rejected by the appellant because legality of the construction made by the company was under scrutiny. In both the cases, respondent No.1 set aside the resolutions passed by the appellant as also the notice issued by the Sarpanch. The orders passed by respondent No.1 do not refer to the particular provision under which the concerned officer was exercising the appellate power. Surely, he could not have exercised the power vested in the appellate authority under Section 201 because the source of power of the resolutions passed by the appellant and the notice issued by the Sarpanch cannot be traced in Sections 76, 77, 84, 104 and 105 of the Act which relate to removal of any building or part thereof or any tree or branch of a tree if it is in a ruinous state or is likely to fall or is otherwise dangerous to any person occupying such building or part thereof or matters relating to sanitation, conservancy and drainage or exercise of power by the Secretary in relation to any well, stream, channel, tank or other source of water supply or which postulates right to carry drain through land or into drain belonging to other persons. Similarly, respondent No.1 cannot be said to have exercised power under Section 201-A because under that provision, only the Block Development Officer is competent to entertain an appeal in a miscellaneous matter which is dealt with by the Panchayat or the Village Panchayat Secretary or the Sarpanch and against which no appeal has been specifically provided under the Act. Therefore, it is reasonable to infer that respondent No.1 had exercised power under Section 178(1). However, instead of suspending the execution of the resolutions passed by the appellant or the notice issued by the Sarpanch and sending the matter to the State Government for confirmation, the concerned officer suo-moto annulled the resolutions and the notice by assuming that he had the power to do so.21. It is thus evident that while the appellant and the Sarpanch had exercised their respective powers in public interest, respondent No.1 nullified that exercise because he felt that the resolution/action was contrary to law and was unjustified. While exercising the power under the Act, the Panchayat was not acting as a subordinate to respondent No.1 but as a body representing the will of the people and also a body corporate in terms of Section 8 of the Act. Therefore, it had the locus to challenge the orders passed by respondent No.1 and the High Court was clearly in error in holding that the writ petition was nothold that the writ petitions filed by the appellant were maintainable and the learned Single Judge of the High Court committed grave error by summarily dismissing the same. We also declare that the contrary view expressed by the High Court in other judgments does not represent the correct legal position. | 1 | 7,523 | 621 | ### Instruction:
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is a body corporate. If so it can sue or be sued. In that position Panchayat cannot be denuded of the right to move under Art. 226 of the Constitution when any of its legal right is infringed by the authorities including the Government.” 23. In High Court of M.P. v. Mahesh Prakash and others (1995) 1 SCC 203 , this Court considered several questions including the one whether the High Court has the locus to challenge the order passed on judicial side by filing a petition under Article 136 of the Constitution. While rejecting the decision of the High Court, this Court observed: “The order that the first respondent challenged in the writ petition filed by him before the High Court was an order passed by the High Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the appellant to move the High Court on its judicial side to consider the validity of the order passed by the High Court on the administrative side and issue a writ in that behalf. In the writ petition the first respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was, therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside. We find, therefore, no merit in what may be termed the preliminary objection to the maintainability of the appeal.” 24. In State of Orissa v. Union of India 1995 Supp. (2) SCC 154, the Court considered the question whether the State Government has locus standi to challenge the order passed by the Central Government in exercise of its revisional power under the Mineral Concession Rules, 1960. While answering the question in affirmative, this Court observed: “In this connection, it is necessary to note that in the first place, the State Government is not merely an authority subordinate to the Central Government which would, undoubtedly, be bound by the revisional orders of the superior authority. It is also the owner of the mines and minerals in question. If it is directed to issue a mining lease in favour of any party, it has locus standi to challenge that order under Article 226 of the Constitution of India.” 25. In Godde Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC 828 , this Court examined the issue of locus standi of a President of Panchayat Samithi to challenge the decision of the Government in the matter of location of Primary Health Centre and held: “Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental right can also approach the court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.Has the appellant a right to file the petition out of which the present appeal has arisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Center. The said committee collected Rs.10,000/- and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Center at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorized to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Art. 226 of the Constitution. This Court held in the decision cited supra that "ordinarily" the petitioner who seeks to file an application under Art. 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Art. 226 of the Constitution at his instance is, therefore, maintainable.” 26. By applying the ratio of the aforesaid judgments to the facts of these cases, we hold that the writ petitions filed by the appellant were maintainable and the learned Single Judge of the High Court committed grave error by summarily dismissing the same. We also declare that the contrary view expressed by the High Court in other judgments does not represent the correct legal position.
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20. In this case, the appellant had entertained the complaint made by local residents, revoked occupancy certificate and also cancelled the permission granted to the company for raising construction. The resolution cancelling the permission was recalled apparently because the rules of natural justice had not been followed. Thereafter, the Sarpanch issued notice under Section 64 and directed the company to stop further construction. The company challenged the notice and succeeded in persuading respondent No.1 to pass an ex-parte interim order. The application made by the company for permission to use the property for running a Guest House was rejected by the appellant because legality of the construction made by the company was under scrutiny. In both the cases, respondent No.1 set aside the resolutions passed by the appellant as also the notice issued by the Sarpanch. The orders passed by respondent No.1 do not refer to the particular provision under which the concerned officer was exercising the appellate power. Surely, he could not have exercised the power vested in the appellate authority under Section 201 because the source of power of the resolutions passed by the appellant and the notice issued by the Sarpanch cannot be traced in Sections 76, 77, 84, 104 and 105 of the Act which relate to removal of any building or part thereof or any tree or branch of a tree if it is in a ruinous state or is likely to fall or is otherwise dangerous to any person occupying such building or part thereof or matters relating to sanitation, conservancy and drainage or exercise of power by the Secretary in relation to any well, stream, channel, tank or other source of water supply or which postulates right to carry drain through land or into drain belonging to other persons. Similarly, respondent No.1 cannot be said to have exercised power under Section 201-A because under that provision, only the Block Development Officer is competent to entertain an appeal in a miscellaneous matter which is dealt with by the Panchayat or the Village Panchayat Secretary or the Sarpanch and against which no appeal has been specifically provided under the Act. Therefore, it is reasonable to infer that respondent No.1 had exercised power under Section 178(1). However, instead of suspending the execution of the resolutions passed by the appellant or the notice issued by the Sarpanch and sending the matter to the State Government for confirmation, the concerned officer suo-moto annulled the resolutions and the notice by assuming that he had the power to do so.21. It is thus evident that while the appellant and the Sarpanch had exercised their respective powers in public interest, respondent No.1 nullified that exercise because he felt that the resolution/action was contrary to law and was unjustified. While exercising the power under the Act, the Panchayat was not acting as a subordinate to respondent No.1 but as a body representing the will of the people and also a body corporate in terms of Section 8 of the Act. Therefore, it had the locus to challenge the orders passed by respondent No.1 and the High Court was clearly in error in holding that the writ petition was nothold that the writ petitions filed by the appellant were maintainable and the learned Single Judge of the High Court committed grave error by summarily dismissing the same. We also declare that the contrary view expressed by the High Court in other judgments does not represent the correct legal position.
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Pathumma & Others Vs. State of Kerala & Others | that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, equal protection of laws is a pledge of the protecting of equal laws". Yick Co. V. Hopkins (23) 118 U.S. a t 369 and this means "subjection to equal laws applying like to all in the same situation". Southern Railway Co. v. Greene (24) 216 U.S. 400, 412. fit other words, there should be no discrimination between one person and another it as regards the subject-matter of the legislation their position is the same".A similar view was taken in the case of Southern Railway Co. v. Greene (supra) where the Supreme Court observed as follows:-"The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made, and classification made without any substantial basis should be regarded as invalid". 36. To the same effect is another decision of this Court in the case of The State of West Bengal v. Anwar Ali Sarkar (supra) where this Court observed as follows:"It can be taken to be well settled that the principle underlying the guarantee in Article 14 is not that the same rules of law should be, applicable to all persons within the Indian territory or that the same remedies should be made avail able to them irrespective, of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities impose d. Equal laws would have to be applied to all in the same situation, and there, should be no discrimination between one person and another if as regards the subject matter of t he legislation their position is substantially the same." 37. Having regard to the nature of the rights acquired by the stranger auction purchaser and the bonafide alienee it cannot be said that they are similarly situate or happen to be in exactly the same position. So far as the stranger auction purchaser like the appellant is concerned three facts stare in the face. First, the stranger auction purchaser participates in the proceedings in execution of the decree passed against the debtor and which culminate in the auction sale which is knocked down in favour of the purchaser. Thus, such a purchaser has a clear notice of the circumstances under which the decree was passed as also the fact that the property sold was the property of the debtor. If, therefore, the legislature at a later stage for the amelioration of the lot of the debtors passes a law to restore the property to the debtor the stranger auction purchaser cannot b e heard to complain. In fact, his position is more or less the same as that of the decree- holder. Second, the stranger auction purchaser knows that be has purchased the property at a distress sale and the element of innocence is completely eliminated. Third, under the provisions of the Act even if the property is restored to the stranger auction purchaser unlike the decree-holder the purchaser is entitled to get the entire purchase money in lump-sum including the cost before parting with the possession of the property. This clearly distinguishes the case from that of the decree-holder purchaser and shows that he is not seriously prejudiced. On the other hand, a bonafide alienee does not purchase the property under a distress sale but under sale which is negotiated with the vendor on the terms acceptable to the purchaser. Secondly a bonafide alienee has absolutely no notice of the debt or the debtor or the circumstance under which the decree was passed and the property was purchased by the vendor.A bonafide alience acquires a new title under a negotiated and completed sale and in case the sale is allowed to be re- opened by the Act it will lead to complicated questions which may cloud the real issues, and frustrate the object of the Act. That apart even our common law as a matter of public policy protects the interests of a bonafide transferee for value without notice against voidable transactions. For instance, transfers which could be set aside under section 53 of the Transfer of Property Act or under section 27(b) of the Specific Relief Act, cannot be set aside or enforced as against such transferees. The Act follows more or less the same policy and protects the bonafide alienee because his purchase is absolutely innocent. While it is true that the provisions of the Act operate rather harshly on the stranger auction purchaser but the rigours of the law have been softened by the fact that under the provisions of the Act the auction purchaser gets his full purchase money with costs for any improvement that he may have made, At any rate, any discomfort that he might have suffered as an individual has to be sublimated to the public good of the community at large, in the instant case, the poor agriculturist debtors. Indeed if the bonafide alienee was also brought within the fold of the Act then the classification might have been arbitrary end unreasonable so as to smack of a draconian measure and might have exceeded the permissible limits of discrimination contemplated by Article 14. 38. For the reasons given above we are unable to accept the argument of Mr. Krishnamoorty Iyer that the appellant has been selected for hostile discrimination under the provisions of section 20 of the Act. The argument is over- ruled. | 0[ds]It was contended that the main object of the Act appears to give relief only to those debtors who had filed suits for recovery of debts after 14th July, 1958. But the Act travels beyond the domain of the statement of objects and reasons by giving a blanket power to the Court to set aside the sales which have been completed even before the passing of the ActBefore however taking up the other two points raised by counsel for the appellants which were pressed before us in this Court it may be necessary to set out the approach which a Court has to make and the principles by which it has to be guided in such matters. Courts Interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation the burning problems of the, day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. This Court while acting as a sentinel on the quivive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society, so that when such right clashes with the larger interest of the country it must yield to the latter.It is obvious that the legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weak-or sections of the society and for the improvement of the lot of poor people. The Court will therefore, interfere in this process only when t he statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same.In the instant case, therefore, we are not able to see any conflict between the directive principles contained in Article 38 and 39(b) and the restrictions placed by the ActWhat is required is that the legislature takes intelligent care and deliberation in choosing a course which is dictated by reason and good conscience so as to strike a just balance between the freedom contained in Article 19 (1) and the social control permitted by clauses (5) and (6) of Article 19. This view, was reiterated in the case of Messrs. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh &Ors. ([1954] S.C.R. 803 at 811- 12.) It has also been pointed out by this Court that in order to judge the quality of the reasonableness no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will have to vary from case to case and with regard to changing conditions, the value of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances all of which must enter into the judicial verdict. In other words, the position is that the Court has to make not a rigid or dogmatic but an elastic and pregmatic approach to the facts of the case and to take an over-all view of all the circumstances, factors and issues facing the situation.This Court has considered this question on several occasions during the last 21 decades, and has laid down several tests guidelines to indicate what in a particular circumstance can be regarded as a reasonable restriction. One of the tests laid down by this Court is that, in judging the reasonableness of the restrictions imposed by clause (5) of Article 19, the Court has to bear in mind the Directive Principles of State Policy. It will be seen that Article 38 contains a clear directive to the State to promote the welfare of the people by securing and protecting as effectively as possible a social order in which justice, social, economic and political , hall inform all the institutions of national life. Article 39(b) contains a direction to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Indisputably, the object of the Act is to eradicate rural indebtedness and thereby to secure the common good of people living in abject poverty. The object, therefore, clearly fulfils the directive laid down in Articles 38 and 39(b) of the Constitution as referred to aboveAnother test which has been laid down by this Court is that restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general publicThe fourth test which has been laid down by this Court to judge the reasonableness of a restriction is to examine the nature and extent, the purport and content of the right, nature of the evil sought to be remedied by the, statute, the ratio of harm caused to the citizen and the benefit to be conferred on the person or the community for whose benefit the legislation is passed, urgency of the evil and necessity to rectify the same. In short, a just balance has to be struck between the restriction imposed and the social control envisaged by clause (6) of Article 1919. The fifth test formulated by this Court is that there must be a , direct and proximate nexus or a reasonable connection between the other words, the Court has to see whether by virtue of the restriction imposed on the right of the citizen the object of the statute is really fulfilled or frustrated. If there is a direct nexus between the restriction and the object of the Act then a strong presumption in favour of t he constitutionality of the Act will naturally ariseAnother test of reasonableness of restrictions is the prevailing social values whose needs are satisfied by restrictions meant to protect social welfareAnother important test which has been enunciated by this Court is that so, far as the nature of reasonableness is concerned it has to be viewed not only from the point of view of the citizen but the problem before the legislature and the object which is sought to be achieved by the statute. In other word s the Courts must see whether the social control envisaged in clause (6) of Article 19 is being effectuated by the restrictions imposed on the fundamental right. It is obvious that if the Courts look at the restrictions only from the point of view of the citizen who is affected it will not be a correct or safe approach in as much as the restriction is bound to be irksome and painful to the citizen even though it may be for the public good. Therefore a just Wince must be struck in r elation to the restriction and the public good that is done to the people at large. It is obvious that, however important the right of it citizen or an individual may be, it has to yield to the larger interests of the country or the communityWe do not mean to suggest that the tests laid down above are completely exhaustive but they undoubtedly provide sufficient guidelines to the Court to determine, the question of reasonableness of a restriction whenever it arises.We would now like to examine the facts and circumstances of the present case in the light of the principles enunciated above in order to find whether or not restrictions imposed by the Act on the rights of the appellants are unreasonableAn analysis of this section shows that the statute seeks to create three different categories of creditors who were liable to restore property to the debtors under circumstances mentioned in the section. In the first place, where the decree-holder has purchased the property at an auction sale but has not been able to get possession of the same, the court has been given power to set aside the sale (1) if the applicant is an agriculturist and is prepared to deposit half of the decretal amount immediately and pay the balance in 10 equal half yearly installments; (2) where the purchaser who purchases the property at the auction sale is a stranger and not a decree-holder the sale can be set aside only on the judgment-debtor depositing the entire purchase money within six months from the date of the commencement of the Act. Sub-section (5) further provides that if any improvements have been made by the purchaser, the debtor will have to reimburse the purchaser for the same, (3) A bonafide alienee who has purchased the property from the auction-purchaser before the date of the publication of the Act is completely exempted from the operation of the provisions of the Act. The Act lays down a self-contain ed procedure for the mode in which the sale is to be set aside and the conditions on which this is to be done. Section 21 of the Act provides for an appeal to the Appellate Court against any order passed under section. 20 and where an order is passed by the Revenue Court an appeal lies to the District Court. Thus the important features of the Act may be summarised as follows:"1. That even if the auction-purchaser was a stranger and may have purchased the property from a debtor at an auction sale, he is liable to restore property on payment of the decretal amount;2. That if the purchaser has made any improvement in the property the debtor has to deposit the cost of the improvements in court before the sale is set aside3. That the debtor has to exercise his option of setting aside the sale within s ix months from the date of the Act."The avowed object of the Act seems to give substantial relief to the agriculturist debtors in order to get back their property and earn their livelihood. This is undoubtedly a laudable object and the Act is a piece of social legislation. As the decree-holder who had purchased the property is fully compensated by being paid the amount for which he had purchased the property, it cannot be said that his right to hold the property has been completely destroyed. The purchaser gets the property at a distress sale and is fully aware of the pitiable conditions under which the debtor was unable to pay the debt. In a Constitution which is wedded to a social patter n of society the purchaser must be presumed to have the knowledge that any social legislation for the good of a particular community or the people in general can be brought forward by Parliament at any time. The Act, however, does not take away the property of the purchaser without paying him due compensation. It is true that section 20(2) (b) provides for payment of the purchase money by installments, but no exception can be taken to this fact as in view of the poverty of the debtor it is not possible for him to pay the debt in a lump-sum and as the legislation is, for a particular community the provision for payment by installments cannot be said to work serious injustice to the decree-holder purchaser, A stranger auction purchaser has been treated differently because he bad nothing to do with the decree and is enjoined to return the property to the agriculturist debtor on payment of entire amount in lumpsum without insisting on installments. Thus, in short, the position is that the object of the Act is to protect the poor distressed agriculturist debtors from the clutches of greedy creditors who have grabbed the properties of debtors and deprived the debtors of their main source of sustenance. Another object which is said to be fulfilled by the statute is to eradicate and remove agricultural indebtedness in the State by amelioration and improvement of the lot of debtors by bringing them to the subsistence level and reducing their borrowings. The Act does not provide for any drastic or arbitrary procedure as the property is restored to the debtor only on payment of the purchase money. The Maharashtra Debt Relief Act of 1976 contained such more drastic provision s and in spite of that it was upheld by this Court as the restrictions were hold byus to be reasonable restrictions in the interest of the general public. To remove poverty by eradicating rural indebtedness is one of the very important social purposes sought to be achieved by our Constitution and it cannot be said that the invasion of the right of the appellants is so excessive as to be branded by the quality of unreasonableness. Having regard to the economic conditions prevailing in Kerala before the passing of the Act, it cannot be said that the restrictions are in any way arbitrary or excessive or beyond the requirements of the situation. Thus, all the tests laid down by this, Court for determining reasonableness of a restriction have been amply fulfilled in this case and we are unable to find any constitutional infirmity in this case on the ground that the Act is violative of Article 19(1) (f). We are clearly of the opinion that the provisions of the Act are reasonable restrictions within the meaning of clause (6) of Article 19. It is true that Article 31 confers a guarantee on a citizen against deprivation of his property except by authority of law. In other words, under Article 31 the property of the citizen cannot be taken away without. there being a valid law for that purpose. The law must not only be valid but it also must not contravene any of the provisions of Article 19 (1) (f). In the instant case, in view of our findings that the Ac t is a valid piece of legislation and amounts to a reasonable restriction within the meaning of sub-clauses (5) and (6) of Article 19 the law passes the test of constitutionality. In these circumstances, therefore, Article 31 is not infringed or violated by the ActWe are, however, unable to agree with this argument because in view of the clear and unambiguous provisions of the Act, it is not necessary for u s, to delve into the statement of objects and reasons of- the Act. Moreover, though the main purpose may have been to give relief to the agriculturist debtors after 14-7-1958 the object was to bring forward a comprehensive legislation on various aspects of the matter in order to give relief to the indebted agriculturists. This object is mentioned in the very first part of the statement of objects and reasons. The words clearly show that the Act was comprehensive in nature and was not confined to any particular situation. In these circumstances, therefore, the contention of learned counsel for the appellants on this score is over-ruledIt is now well settled that what Article 14 forbids is hostile discrimination and not reasonable classification. Equality before law does not me an that the same set of law should apply to all persons under every circumstance ignoring differences and disparties between men and things. A reasonable classification is inherent in the very concept of equality, because all persons living on this earth are not alike and have different problems. Some may be wealthy; some may be poor; some may be educated; some I may be uneducated some may be highly advanced and others may be economically backward. It is for the State to make a reasonable classification which must fulfil two conditions: (1) The classification must he founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. (2) The differentia must have a reasonable nexus to the object sought to be achieved by the statuteWhile dealing with the first argument we have already pointed out the economic conditions prevailing in the State and the abject poverty in which the agriculturist debtors were living. We have also referred to the Directive Principles of State Policy as contained in the Constitution and have held that it is the duty of the legislature to implement these directives. Having regard, therefore, to the poverty and economic backwardness of the agriculturist debtors and their miserable conditions in which they live, it cannot be said that if they are treated as a separate category or class for preferential treatment in public interest then the said classification is unreasonable. It is also clear that in making the classification the legislature cannot be expected to provide an abstract symmetry but the classes have to be set apart according to the necessities and exigencies of the society as dictated by experience and surrounding circumstances. All that is necessary is that the classification should not be arbitrary, artificial or illusory. Having regard to the circumstances mentioned above, we are unable to hold that the classification does not rest upon any real and substantial distinction bearing a reason-able and just relation to the thing in respect of which the same is made. This view was taken in the case of State of West Bengal v. Anwar Ali Sarkar.([1952] S.C.R. 2 84 at 321.) In our opinion, both the conditions of reasonable classification indicated above are fully satisfied in this case. For these reasons, we hold that section 20 of the Act is not violative of Article 14 of the Constitution and reject the first branch of the argument on this pointWe have given our anxious consideration to this argument and we find that it is not tenable. It is well settled that before a person can claim to be discriminated against another he must show that al l the other persons are similarly situate or equally circumstanced. The pleading of the appellant does not at all contain any facts to show how the two are similarly situate. Unless the appellant is able to establish that he is equated with the bonafide alienee in all and every respect, Article 14 will have no application. In other words, discrimination violative of Article 14 can only take effect if there is discrimination between equals and not where unequals are being differently treated vide State of J &K v. T. N. Khosa &Anr. ([1974] 1 S.C.R. 771 at 783.)Having regard to the nature of the rights acquired by the stranger auction purchaser and the bonafide alienee it cannot be said that they are similarly situate or happen to be in exactly the same position. So far as the stranger auction purchaser like the appellant is concerned three facts stare in the face. First, the stranger auction purchaser participates in the proceedings in execution of the decree passed against the debtor and which culminate in the auction sale which is knocked down in favour of the purchaser. Thus, such a purchaser has a clear notice of the circumstances under which the decree was passed as also the fact that the property sold was the property of the debtor. If, therefore, the legislature at a later stage for the amelioration of the lot of the debtors passes a law to restore the property to the debtor the stranger auction purchaser cannot b e heard to complain. In fact, his position is more or less the same as that of the decree- holder. Second, the stranger auction purchaser knows that be has purchased the property at a distress sale and the element of innocence is completely eliminated. Third, under the provisions of the Act even if the property is restored to the stranger auction purchaser unlike the decree-holder the purchaser is entitled to get the entire purchase money in lump-sum including the cost before parting with the possession of the property. This clearly distinguishes the case from that of the decree-holder purchaser and shows that he is not seriously prejudiced. On the other hand, a bonafide alienee does not purchase the property under a distress sale but under sale which is negotiated with the vendor on the terms acceptable to the purchaser. Secondly a bonafide alienee has absolutely no notice of the debt or the debtor or the circumstance under which the decree was passed and the property was purchased by the vendor.A bonafide alience acquires a new title under a negotiated and completed sale and in case the sale is allowed to be re- opened by the Act it will lead to complicated questions which may cloud the real issues, and frustrate the object of the Act. That apart even our common law as a matter of public policy protects the interests of a bonafide transferee for value without notice against voidable transactions. For instance, transfers which could be set aside under section 53 of the Transfer of Property Act or under section 27(b) of the Specific Relief Act, cannot be set aside or enforced as against such transferees. The Act follows more or less the same policy and protects the bonafide alienee because his purchase is absolutely innocent. While it is true that the provisions of the Act operate rather harshly on the stranger auction purchaser but the rigours of the law have been softened by the fact that under the provisions of the Act the auction purchaser gets his full purchase money with costs for any improvement that he may have made, At any rate, any discomfort that he might have suffered as an individual has to be sublimated to the public good of the community at large, in the instant case, the poor agriculturist debtors. Indeed if the bonafide alienee was also brought within the fold of the Act then the classification might have been arbitrary end unreasonable so as to smack of a draconian measure and might have exceeded the permissible limits of discrimination contemplated by Article 1438. For the reasons given above we are unable to accept the argument of Mr. Krishnamoorty Iyer that the appellant has been selected for hostile discrimination under the provisions of section 20 of the Act. The argument is over- ruled. | 0 | 12,188 | 4,034 | ### Instruction:
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that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, equal protection of laws is a pledge of the protecting of equal laws". Yick Co. V. Hopkins (23) 118 U.S. a t 369 and this means "subjection to equal laws applying like to all in the same situation". Southern Railway Co. v. Greene (24) 216 U.S. 400, 412. fit other words, there should be no discrimination between one person and another it as regards the subject-matter of the legislation their position is the same".A similar view was taken in the case of Southern Railway Co. v. Greene (supra) where the Supreme Court observed as follows:-"The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made, and classification made without any substantial basis should be regarded as invalid". 36. To the same effect is another decision of this Court in the case of The State of West Bengal v. Anwar Ali Sarkar (supra) where this Court observed as follows:"It can be taken to be well settled that the principle underlying the guarantee in Article 14 is not that the same rules of law should be, applicable to all persons within the Indian territory or that the same remedies should be made avail able to them irrespective, of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities impose d. Equal laws would have to be applied to all in the same situation, and there, should be no discrimination between one person and another if as regards the subject matter of t he legislation their position is substantially the same." 37. Having regard to the nature of the rights acquired by the stranger auction purchaser and the bonafide alienee it cannot be said that they are similarly situate or happen to be in exactly the same position. So far as the stranger auction purchaser like the appellant is concerned three facts stare in the face. First, the stranger auction purchaser participates in the proceedings in execution of the decree passed against the debtor and which culminate in the auction sale which is knocked down in favour of the purchaser. Thus, such a purchaser has a clear notice of the circumstances under which the decree was passed as also the fact that the property sold was the property of the debtor. If, therefore, the legislature at a later stage for the amelioration of the lot of the debtors passes a law to restore the property to the debtor the stranger auction purchaser cannot b e heard to complain. In fact, his position is more or less the same as that of the decree- holder. Second, the stranger auction purchaser knows that be has purchased the property at a distress sale and the element of innocence is completely eliminated. Third, under the provisions of the Act even if the property is restored to the stranger auction purchaser unlike the decree-holder the purchaser is entitled to get the entire purchase money in lump-sum including the cost before parting with the possession of the property. This clearly distinguishes the case from that of the decree-holder purchaser and shows that he is not seriously prejudiced. On the other hand, a bonafide alienee does not purchase the property under a distress sale but under sale which is negotiated with the vendor on the terms acceptable to the purchaser. Secondly a bonafide alienee has absolutely no notice of the debt or the debtor or the circumstance under which the decree was passed and the property was purchased by the vendor.A bonafide alience acquires a new title under a negotiated and completed sale and in case the sale is allowed to be re- opened by the Act it will lead to complicated questions which may cloud the real issues, and frustrate the object of the Act. That apart even our common law as a matter of public policy protects the interests of a bonafide transferee for value without notice against voidable transactions. For instance, transfers which could be set aside under section 53 of the Transfer of Property Act or under section 27(b) of the Specific Relief Act, cannot be set aside or enforced as against such transferees. The Act follows more or less the same policy and protects the bonafide alienee because his purchase is absolutely innocent. While it is true that the provisions of the Act operate rather harshly on the stranger auction purchaser but the rigours of the law have been softened by the fact that under the provisions of the Act the auction purchaser gets his full purchase money with costs for any improvement that he may have made, At any rate, any discomfort that he might have suffered as an individual has to be sublimated to the public good of the community at large, in the instant case, the poor agriculturist debtors. Indeed if the bonafide alienee was also brought within the fold of the Act then the classification might have been arbitrary end unreasonable so as to smack of a draconian measure and might have exceeded the permissible limits of discrimination contemplated by Article 14. 38. For the reasons given above we are unable to accept the argument of Mr. Krishnamoorty Iyer that the appellant has been selected for hostile discrimination under the provisions of section 20 of the Act. The argument is over- ruled.
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have also referred to the Directive Principles of State Policy as contained in the Constitution and have held that it is the duty of the legislature to implement these directives. Having regard, therefore, to the poverty and economic backwardness of the agriculturist debtors and their miserable conditions in which they live, it cannot be said that if they are treated as a separate category or class for preferential treatment in public interest then the said classification is unreasonable. It is also clear that in making the classification the legislature cannot be expected to provide an abstract symmetry but the classes have to be set apart according to the necessities and exigencies of the society as dictated by experience and surrounding circumstances. All that is necessary is that the classification should not be arbitrary, artificial or illusory. Having regard to the circumstances mentioned above, we are unable to hold that the classification does not rest upon any real and substantial distinction bearing a reason-able and just relation to the thing in respect of which the same is made. This view was taken in the case of State of West Bengal v. Anwar Ali Sarkar.([1952] S.C.R. 2 84 at 321.) In our opinion, both the conditions of reasonable classification indicated above are fully satisfied in this case. For these reasons, we hold that section 20 of the Act is not violative of Article 14 of the Constitution and reject the first branch of the argument on this pointWe have given our anxious consideration to this argument and we find that it is not tenable. It is well settled that before a person can claim to be discriminated against another he must show that al l the other persons are similarly situate or equally circumstanced. The pleading of the appellant does not at all contain any facts to show how the two are similarly situate. Unless the appellant is able to establish that he is equated with the bonafide alienee in all and every respect, Article 14 will have no application. In other words, discrimination violative of Article 14 can only take effect if there is discrimination between equals and not where unequals are being differently treated vide State of J &K v. T. N. Khosa &Anr. ([1974] 1 S.C.R. 771 at 783.)Having regard to the nature of the rights acquired by the stranger auction purchaser and the bonafide alienee it cannot be said that they are similarly situate or happen to be in exactly the same position. So far as the stranger auction purchaser like the appellant is concerned three facts stare in the face. First, the stranger auction purchaser participates in the proceedings in execution of the decree passed against the debtor and which culminate in the auction sale which is knocked down in favour of the purchaser. Thus, such a purchaser has a clear notice of the circumstances under which the decree was passed as also the fact that the property sold was the property of the debtor. If, therefore, the legislature at a later stage for the amelioration of the lot of the debtors passes a law to restore the property to the debtor the stranger auction purchaser cannot b e heard to complain. In fact, his position is more or less the same as that of the decree- holder. Second, the stranger auction purchaser knows that be has purchased the property at a distress sale and the element of innocence is completely eliminated. Third, under the provisions of the Act even if the property is restored to the stranger auction purchaser unlike the decree-holder the purchaser is entitled to get the entire purchase money in lump-sum including the cost before parting with the possession of the property. This clearly distinguishes the case from that of the decree-holder purchaser and shows that he is not seriously prejudiced. On the other hand, a bonafide alienee does not purchase the property under a distress sale but under sale which is negotiated with the vendor on the terms acceptable to the purchaser. Secondly a bonafide alienee has absolutely no notice of the debt or the debtor or the circumstance under which the decree was passed and the property was purchased by the vendor.A bonafide alience acquires a new title under a negotiated and completed sale and in case the sale is allowed to be re- opened by the Act it will lead to complicated questions which may cloud the real issues, and frustrate the object of the Act. That apart even our common law as a matter of public policy protects the interests of a bonafide transferee for value without notice against voidable transactions. For instance, transfers which could be set aside under section 53 of the Transfer of Property Act or under section 27(b) of the Specific Relief Act, cannot be set aside or enforced as against such transferees. The Act follows more or less the same policy and protects the bonafide alienee because his purchase is absolutely innocent. While it is true that the provisions of the Act operate rather harshly on the stranger auction purchaser but the rigours of the law have been softened by the fact that under the provisions of the Act the auction purchaser gets his full purchase money with costs for any improvement that he may have made, At any rate, any discomfort that he might have suffered as an individual has to be sublimated to the public good of the community at large, in the instant case, the poor agriculturist debtors. Indeed if the bonafide alienee was also brought within the fold of the Act then the classification might have been arbitrary end unreasonable so as to smack of a draconian measure and might have exceeded the permissible limits of discrimination contemplated by Article 1438. For the reasons given above we are unable to accept the argument of Mr. Krishnamoorty Iyer that the appellant has been selected for hostile discrimination under the provisions of section 20 of the Act. The argument is over- ruled.
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Javid Rasool Bhat and Others Etc Vs. State of Jammu and Kashmir and Others | test. It appears to us to be a perfectly reasonable procedure. Even otherwise it is always open to a Selection Committee to insist on taking into consideration marks obtained at the examination held by it only and excluding from consideration marks obtained examinations held by other bodies. We are unable to see anything wrong in this procedure. A similar contention was negatived in Ajay Hasias case also where it was observed:"It is difficult to appreciate how a procedure for admission which does not take into account the marks obtained at the qualifying examination but prefers to test the comparative merit of the candidates by insisting on an entrance examination can every be said to be arbitrary".9. Two other submissions which were made in the course of the argument may also be disposed of here. One was that general knowledge and general intelligence were not matters to be tested in the viva voce test but should have been tested in a written examination. That is not a matter for this Court to decide. It was a matter for the Selection Committee to decide whether general knowledge and general intelligence could be more appropriately tested in the viva voce test or in the written test. The other submission was that there was delay in the announcement of results a nd the delay made the selection suspect. We find that there was in fact no delay and we only add that the suspicion, if any, was unfounded.We finally come to the submission on which Shri Anil Dev Singh laid considerable emphasis, namely, that the entire selection was vitiated by the presence on the Selection Committee of the father of one of the candidates. This was said to be a gross violation of one of the principles of natural justice. The grievance is not real. The Principal of Medical College, Srinagar, whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with the writ ten test and would not be present when his daughter was interviewed. The other members of the Selection Committee accepted the suggestion of the Principal and did not think it necessary to address the Government to appoint a substitute member of the Selection Committee since the Government had fixed the quorum for a meeting of the Selection Committee as the Chairman and one other member and it was possible to have a quorum without the Principal of the Medical College. Srinagar . The procedure adopted by the Selection Committee and the member concerned was in accord with the quite well-known and generally accepted procedure adopted by the Public Service Commissions every where it is not unusual for candidates related to members of the Service Commission or other Selection Committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this court in the case of Nagarjan v. State of Mysore (1) where it was pointed out that in the absence of mala fides, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the Selection Commission who had abstained from participating in the interview of that candidate. Nothing unusual was done by the present Selection Committee. The girls father was not present when s he was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed. And, in fact, we find that as a result of her performance at the interview, she lost rather than gained some places.Great reliarlce was placed by the learned counsel on A.K.Kraipk &Ors. v. Union of India (2) on the question of natural justice. We do not think that the case is of any assistance to the petitioners. It was a ca se where one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the clams of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The court had no hesitation coming to the conclusion that there was a reasonable likelihood of ibis and therefore, there was a violation of the principles of natural justice. In the case before us, the Principal of the Medical College, Srinagar , dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates . There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principals of natural justice.10. One last submission, which we may note, was that there was a contravention of one of the regulations made by the Indian Medical Council. It was said that the regulation prescribed that the marks obtained at the qualifying examination should be taken into consideration in States having only one Medical College and one University/Board/Examination Body conducting the qualifying examination. This regulation has no application because there are two Medical Colleges in this State . Though only one Board conducted the qualifying examination, the examinations were conducted separately for Jammu and Srinagar areas and on two different occasions. In the second place, these regulations, have been held to be directory an d not mandatory by this court in State of Madhya Pradesh v. Kr. Nivedita Jain.(1)W | 0[ds]We do not think that the case is of any assistance to the petitioners. It was a ca se where one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the clams of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The court had no hesitation coming to the conclusion that there was a reasonable likelihood of ibis and therefore, there was a violation of the principles of natural justice. In the case before us, the Principal of the Medical College, Srinagar , dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates . There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principals of naturallast submission, which we may note, was that there was a contravention of one of the regulations made by the Indian Medical Council. It was said that the regulation prescribed that the marks obtained at the qualifying examination should be taken into consideration in States having only one Medical College and one University/Board/Examination Body conducting the qualifying examination. This regulation has no application because there are two Medical Colleges in this State . Though only one Board conducted the qualifying examination, the examinations were conducted separately for Jammu and Srinagar areas and on two different occasions. In the second place, these regulations, have been held to be directory an d not mandatory by this court in State of Madhya Pradesh v. Kr. Nivedita Jain.(1)We have considered the various points raised by the petitioners at some length, we have said so much and we have quoted from the previous judgments of this Court in extense not because we find any substance in any of the contentions, but because these contentionsare being repeatedly raised in many such cases and we desire to discourage the raising of unnecessary hope in the minds of the young men and women seeking the aid of courts for admission into professional colleges, ready as they are to clutch at any straw. | 0 | 6,030 | 468 | ### Instruction:
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test. It appears to us to be a perfectly reasonable procedure. Even otherwise it is always open to a Selection Committee to insist on taking into consideration marks obtained at the examination held by it only and excluding from consideration marks obtained examinations held by other bodies. We are unable to see anything wrong in this procedure. A similar contention was negatived in Ajay Hasias case also where it was observed:"It is difficult to appreciate how a procedure for admission which does not take into account the marks obtained at the qualifying examination but prefers to test the comparative merit of the candidates by insisting on an entrance examination can every be said to be arbitrary".9. Two other submissions which were made in the course of the argument may also be disposed of here. One was that general knowledge and general intelligence were not matters to be tested in the viva voce test but should have been tested in a written examination. That is not a matter for this Court to decide. It was a matter for the Selection Committee to decide whether general knowledge and general intelligence could be more appropriately tested in the viva voce test or in the written test. The other submission was that there was delay in the announcement of results a nd the delay made the selection suspect. We find that there was in fact no delay and we only add that the suspicion, if any, was unfounded.We finally come to the submission on which Shri Anil Dev Singh laid considerable emphasis, namely, that the entire selection was vitiated by the presence on the Selection Committee of the father of one of the candidates. This was said to be a gross violation of one of the principles of natural justice. The grievance is not real. The Principal of Medical College, Srinagar, whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with the writ ten test and would not be present when his daughter was interviewed. The other members of the Selection Committee accepted the suggestion of the Principal and did not think it necessary to address the Government to appoint a substitute member of the Selection Committee since the Government had fixed the quorum for a meeting of the Selection Committee as the Chairman and one other member and it was possible to have a quorum without the Principal of the Medical College. Srinagar . The procedure adopted by the Selection Committee and the member concerned was in accord with the quite well-known and generally accepted procedure adopted by the Public Service Commissions every where it is not unusual for candidates related to members of the Service Commission or other Selection Committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this court in the case of Nagarjan v. State of Mysore (1) where it was pointed out that in the absence of mala fides, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the Selection Commission who had abstained from participating in the interview of that candidate. Nothing unusual was done by the present Selection Committee. The girls father was not present when s he was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed. And, in fact, we find that as a result of her performance at the interview, she lost rather than gained some places.Great reliarlce was placed by the learned counsel on A.K.Kraipk &Ors. v. Union of India (2) on the question of natural justice. We do not think that the case is of any assistance to the petitioners. It was a ca se where one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the clams of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The court had no hesitation coming to the conclusion that there was a reasonable likelihood of ibis and therefore, there was a violation of the principles of natural justice. In the case before us, the Principal of the Medical College, Srinagar , dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates . There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principals of natural justice.10. One last submission, which we may note, was that there was a contravention of one of the regulations made by the Indian Medical Council. It was said that the regulation prescribed that the marks obtained at the qualifying examination should be taken into consideration in States having only one Medical College and one University/Board/Examination Body conducting the qualifying examination. This regulation has no application because there are two Medical Colleges in this State . Though only one Board conducted the qualifying examination, the examinations were conducted separately for Jammu and Srinagar areas and on two different occasions. In the second place, these regulations, have been held to be directory an d not mandatory by this court in State of Madhya Pradesh v. Kr. Nivedita Jain.(1)W
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### Explanation:
We do not think that the case is of any assistance to the petitioners. It was a ca se where one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the clams of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The court had no hesitation coming to the conclusion that there was a reasonable likelihood of ibis and therefore, there was a violation of the principles of natural justice. In the case before us, the Principal of the Medical College, Srinagar , dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates . There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principals of naturallast submission, which we may note, was that there was a contravention of one of the regulations made by the Indian Medical Council. It was said that the regulation prescribed that the marks obtained at the qualifying examination should be taken into consideration in States having only one Medical College and one University/Board/Examination Body conducting the qualifying examination. This regulation has no application because there are two Medical Colleges in this State . Though only one Board conducted the qualifying examination, the examinations were conducted separately for Jammu and Srinagar areas and on two different occasions. In the second place, these regulations, have been held to be directory an d not mandatory by this court in State of Madhya Pradesh v. Kr. Nivedita Jain.(1)We have considered the various points raised by the petitioners at some length, we have said so much and we have quoted from the previous judgments of this Court in extense not because we find any substance in any of the contentions, but because these contentionsare being repeatedly raised in many such cases and we desire to discourage the raising of unnecessary hope in the minds of the young men and women seeking the aid of courts for admission into professional colleges, ready as they are to clutch at any straw.
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M/S DHARMARATNAKARA RAI BAHADUR ARCOT NARAINSWAMY MUDALIAR CHATTRAM & OTHER CHARITIES & ORS Vs. M/S BHASKAR RAJU & BROTHERS & ORS | of the Stamp Act. 21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court should con- sider at the outset, whether an objection in that behalf is raised or not, whether the doc- ument is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The court cannot act upon such a docu- ment or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence. 20. It can thus clearly be seen, that this Court has in unequivocal terms held, that when a lease deed or any other instrument is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue. It has further been held, that if the Court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the Court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. It is needless to state, that the provisions that fell for consideration before this Court are analogous with the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. In this view of the matter, we are of the considered view, that in view of the law laid down in the case of SMS Tea Estates Private Limited (supra), that the lease deed containing the arbitration clause which is required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed the respondent Nos. 1 and 2 to pay deficit stamp duty and penalty of Rs.1,01,56,388/- (Rupees One crore One lakh fifty-six thousand Three hundred and Eighty-eight only), the respondents failed to do so, the High Court has erred in relying on the said lease dated 12.3.1997. 21. Though the appellants deserve to succeed only on the aforesaid question of law, we find, that even on equity the respondents are not entitled to any relief. 22. After lease deed was executed in the year 1996-1997, though the respondent Nos. 1 and 2 have placed on record some settlement deeds with tenants executed in 1998, except one bald statement, that last of the tenants was evicted in the year 2010, nothing has been placed on record. It appears, that only after the appellants had filed a suit for injunction against the respondents which was duly contested by the respondents by filing written statement on 18.6.2011, the respondents after participating in the suit proceedings for a period of about 2 years and 3 months, filed the present application before the High Court under Section 11(6) of the Arbitration Act. It is further to be noted, that if in the pursuit of the respondents, the lease deed dated 12.3.1997 was legal and valid document and it could be relied on for referring the dispute to arbitration in view of clause 36 thereof, nothing precluded them from filing an application under Section 8 of the Arbitration Act before the City Civil Court at Bangalore in O.S. No.8952 of 2010 at the earliest opportunity available. It appears, that the respondent Nos. 1 and 2 are taking self-contradictory stands. In the written statement before the City Civil Court at Bangalore, they have admitted, that the document was a lease deed, whereas before the High Court they have taken a stand, that the document was an agreement for developing the property after the property is made vacant by evicting the tenants. The stand is also totally contrary to the terms expressed in the lease deed. It will be relevant to refer to clause 5 of the lease deed dated 12.3.1997, which reads thus: 5. The tenure of the lease shall be 38 years commencing from the date of signing of this lease deed. 23. It can thus clearly be seen, that the tenure of the lease deed was to be 38 years from the date of signing of the lease deed. 24. A perusal of the clauses of the lease deed dated 12.3.1997 would also reveal, that the lessee had undertaken all the responsibility of obtaining vacant possession of Schedule B property and to secure vacant possession by ejecting the unauthorised occupants. Responsibility of sanctioning the building plans was also undertaken by the respondents. It would further reveal, that it was also agreed between the parties, that in the event of any of the tenants approaching a court of law, such period of litigation shall not in any manner affect the agreed tenure of the lease deed of 38 years. 25. In that view of the matter, the submission made by Shri Balaji Srinivasan, learned counsel for the respondents, that the agreement was to be registered only after all the tenants were evicted and the building plans were sanctioned is not supported by any of the terms in the lease deed dated 12.3.1997. 26. In that view of the matter, we find, that the High Court has totally erred in relying on the lease deed dated 12.3.1997, which was found to be insufficiently stamped and brushing aside the report of the Registrar (Judicial), when the respondents had failed to pay the insufficient stamp duty and penalty as determined by the Registrar (Judicial) of the High Court of Karnataka. | 1[ds]18. Admittedly, both the lease deeds are neither registered nor sufficiently stamped as required under the Karnataka Stamp Act, 1957. Admittedly, the Registrar (Judicial) of the High Court of Karnataka had submitted a report to the High Court pointing out, that the document of 1997 executed/entered into between the parties was a lease deed and not an agreement to lease and passed an order directing the respondent Nos. 1 and 2 to pay deficit stamp duty and penalty of Rs. 1,01,56,388 /- (Rupees One crore One lakh Fifty-Six thousand Three hundred and Eighty- Eight only). It is also an admitted fact, that the respondent Nos. 1 and 2 have not complied with the said directions and have not paid the deficit stamp duty and penalty19. The issue is no longer res integra. This Court in the case of SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited (2011) 14 SCC 66 had occasion to consider the provisions which are in pari materia with the provisions of the Karnataka Stamp Act, 195720. It can thus clearly be seen, that this Court has in unequivocal terms held, that when a lease deed or any other instrument is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue. It has further been held, that if the Court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the Court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. It is needless to state, that the provisions that fell for consideration before this Court are analogous with the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. In this view of the matter, we are of the considered view, that in view of the law laid down in the case of SMS Tea Estates Private Limited (supra), that the lease deed containing the arbitration clause which is required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed the respondent Nos. 1 and 2 to pay deficit stamp duty and penalty of Rs.1,01,56,388/- (Rupees One crore One lakh fifty-six thousand Three hundred and Eighty-eight only), the respondents failed to do so, the High Court has erred in relying on the said lease dated 12.3.199721. Though the appellants deserve to succeed only on the aforesaid question of law, we find, that even on equity the respondents are not entitled to any relief22. After lease deed was executed in the year 1996-1997, though the respondent Nos. 1 and 2 have placed on record some settlement deeds with tenants executed in 1998, except one bald statement, that last of the tenants was evicted in the year 2010, nothing has been placed on record. It appears, that only after the appellants had filed a suit for injunction against the respondents which was duly contested by the respondents by filing written statement on 18.6.2011, the respondents after participating in the suit proceedings for a period of about 2 years and 3 months, filed the present application before the High Court under Section 11(6) of the Arbitration Act. It is further to be noted, that if in the pursuit of the respondents, the lease deed dated 12.3.1997 was legal and valid document and it could be relied on for referring the dispute to arbitration in view of clause 36 thereof, nothing precluded them from filing an application under Section 8 of the Arbitration Act before the City Civil Court at Bangalore in O.S. No.8952 of 2010 at the earliest opportunity available. It appears, that the respondent Nos. 1 and 2 are taking self-contradictory stands. In the written statement before the City Civil Court at Bangalore, they have admitted, that the document was a lease deed, whereas before the High Court they have taken a stand, that the document was an agreement for developing the property after the property is made vacant by evicting the tenants. The stand is also totally contrary to the terms expressed in the lease deed23. It can thus clearly be seen, that the tenure of the lease deed was to be 38 years from the date of signing of the lease deed24. A perusal of the clauses of the lease deed dated 12.3.1997 would also reveal, that the lessee had undertaken all the responsibility of obtaining vacant possession of Schedule B property and to secure vacant possession by ejecting the unauthorised occupants. Responsibility of sanctioning the building plans was also undertaken by the respondents. It would further reveal, that it was also agreed between the parties, that in the event of any of the tenants approaching a court of law, such period of litigation shall not in any manner affect the agreed tenure of the lease deed of 38 years25. In that view of the matter, the submission made by Shri Balaji Srinivasan, learned counsel for the respondents, that the agreement was to be registered only after all the tenants were evicted and the building plans were sanctioned is not supported by any of the terms in the lease deed dated 12.3.199726. In that view of the matter, we find, that the High Court has totally erred in relying on the lease deed dated 12.3.1997, which was found to be insufficiently stamped and brushing aside the report of the Registrar (Judicial), when the respondents had failed to pay the insufficient stamp duty and penalty as determined by the Registrar (Judicial) of the High Court of Karnataka. | 1 | 4,263 | 1,118 | ### 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:
of the Stamp Act. 21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court should con- sider at the outset, whether an objection in that behalf is raised or not, whether the doc- ument is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The court cannot act upon such a docu- ment or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence. 20. It can thus clearly be seen, that this Court has in unequivocal terms held, that when a lease deed or any other instrument is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue. It has further been held, that if the Court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the Court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. It is needless to state, that the provisions that fell for consideration before this Court are analogous with the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. In this view of the matter, we are of the considered view, that in view of the law laid down in the case of SMS Tea Estates Private Limited (supra), that the lease deed containing the arbitration clause which is required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed the respondent Nos. 1 and 2 to pay deficit stamp duty and penalty of Rs.1,01,56,388/- (Rupees One crore One lakh fifty-six thousand Three hundred and Eighty-eight only), the respondents failed to do so, the High Court has erred in relying on the said lease dated 12.3.1997. 21. Though the appellants deserve to succeed only on the aforesaid question of law, we find, that even on equity the respondents are not entitled to any relief. 22. After lease deed was executed in the year 1996-1997, though the respondent Nos. 1 and 2 have placed on record some settlement deeds with tenants executed in 1998, except one bald statement, that last of the tenants was evicted in the year 2010, nothing has been placed on record. It appears, that only after the appellants had filed a suit for injunction against the respondents which was duly contested by the respondents by filing written statement on 18.6.2011, the respondents after participating in the suit proceedings for a period of about 2 years and 3 months, filed the present application before the High Court under Section 11(6) of the Arbitration Act. It is further to be noted, that if in the pursuit of the respondents, the lease deed dated 12.3.1997 was legal and valid document and it could be relied on for referring the dispute to arbitration in view of clause 36 thereof, nothing precluded them from filing an application under Section 8 of the Arbitration Act before the City Civil Court at Bangalore in O.S. No.8952 of 2010 at the earliest opportunity available. It appears, that the respondent Nos. 1 and 2 are taking self-contradictory stands. In the written statement before the City Civil Court at Bangalore, they have admitted, that the document was a lease deed, whereas before the High Court they have taken a stand, that the document was an agreement for developing the property after the property is made vacant by evicting the tenants. The stand is also totally contrary to the terms expressed in the lease deed. It will be relevant to refer to clause 5 of the lease deed dated 12.3.1997, which reads thus: 5. The tenure of the lease shall be 38 years commencing from the date of signing of this lease deed. 23. It can thus clearly be seen, that the tenure of the lease deed was to be 38 years from the date of signing of the lease deed. 24. A perusal of the clauses of the lease deed dated 12.3.1997 would also reveal, that the lessee had undertaken all the responsibility of obtaining vacant possession of Schedule B property and to secure vacant possession by ejecting the unauthorised occupants. Responsibility of sanctioning the building plans was also undertaken by the respondents. It would further reveal, that it was also agreed between the parties, that in the event of any of the tenants approaching a court of law, such period of litigation shall not in any manner affect the agreed tenure of the lease deed of 38 years. 25. In that view of the matter, the submission made by Shri Balaji Srinivasan, learned counsel for the respondents, that the agreement was to be registered only after all the tenants were evicted and the building plans were sanctioned is not supported by any of the terms in the lease deed dated 12.3.1997. 26. In that view of the matter, we find, that the High Court has totally erred in relying on the lease deed dated 12.3.1997, which was found to be insufficiently stamped and brushing aside the report of the Registrar (Judicial), when the respondents had failed to pay the insufficient stamp duty and penalty as determined by the Registrar (Judicial) of the High Court of Karnataka.
### Response:
1
### Explanation:
the lease deeds are neither registered nor sufficiently stamped as required under the Karnataka Stamp Act, 1957. Admittedly, the Registrar (Judicial) of the High Court of Karnataka had submitted a report to the High Court pointing out, that the document of 1997 executed/entered into between the parties was a lease deed and not an agreement to lease and passed an order directing the respondent Nos. 1 and 2 to pay deficit stamp duty and penalty of Rs. 1,01,56,388 /- (Rupees One crore One lakh Fifty-Six thousand Three hundred and Eighty- Eight only). It is also an admitted fact, that the respondent Nos. 1 and 2 have not complied with the said directions and have not paid the deficit stamp duty and penalty19. The issue is no longer res integra. This Court in the case of SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited (2011) 14 SCC 66 had occasion to consider the provisions which are in pari materia with the provisions of the Karnataka Stamp Act, 195720. It can thus clearly be seen, that this Court has in unequivocal terms held, that when a lease deed or any other instrument is relied upon as containing the arbitration agreement, the Court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the Court to consider the issue. It has further been held, that if the Court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the Court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. It is needless to state, that the provisions that fell for consideration before this Court are analogous with the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. In this view of the matter, we are of the considered view, that in view of the law laid down in the case of SMS Tea Estates Private Limited (supra), that the lease deed containing the arbitration clause which is required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed the respondent Nos. 1 and 2 to pay deficit stamp duty and penalty of Rs.1,01,56,388/- (Rupees One crore One lakh fifty-six thousand Three hundred and Eighty-eight only), the respondents failed to do so, the High Court has erred in relying on the said lease dated 12.3.199721. Though the appellants deserve to succeed only on the aforesaid question of law, we find, that even on equity the respondents are not entitled to any relief22. After lease deed was executed in the year 1996-1997, though the respondent Nos. 1 and 2 have placed on record some settlement deeds with tenants executed in 1998, except one bald statement, that last of the tenants was evicted in the year 2010, nothing has been placed on record. It appears, that only after the appellants had filed a suit for injunction against the respondents which was duly contested by the respondents by filing written statement on 18.6.2011, the respondents after participating in the suit proceedings for a period of about 2 years and 3 months, filed the present application before the High Court under Section 11(6) of the Arbitration Act. It is further to be noted, that if in the pursuit of the respondents, the lease deed dated 12.3.1997 was legal and valid document and it could be relied on for referring the dispute to arbitration in view of clause 36 thereof, nothing precluded them from filing an application under Section 8 of the Arbitration Act before the City Civil Court at Bangalore in O.S. No.8952 of 2010 at the earliest opportunity available. It appears, that the respondent Nos. 1 and 2 are taking self-contradictory stands. In the written statement before the City Civil Court at Bangalore, they have admitted, that the document was a lease deed, whereas before the High Court they have taken a stand, that the document was an agreement for developing the property after the property is made vacant by evicting the tenants. The stand is also totally contrary to the terms expressed in the lease deed23. It can thus clearly be seen, that the tenure of the lease deed was to be 38 years from the date of signing of the lease deed24. A perusal of the clauses of the lease deed dated 12.3.1997 would also reveal, that the lessee had undertaken all the responsibility of obtaining vacant possession of Schedule B property and to secure vacant possession by ejecting the unauthorised occupants. Responsibility of sanctioning the building plans was also undertaken by the respondents. It would further reveal, that it was also agreed between the parties, that in the event of any of the tenants approaching a court of law, such period of litigation shall not in any manner affect the agreed tenure of the lease deed of 38 years25. In that view of the matter, the submission made by Shri Balaji Srinivasan, learned counsel for the respondents, that the agreement was to be registered only after all the tenants were evicted and the building plans were sanctioned is not supported by any of the terms in the lease deed dated 12.3.199726. In that view of the matter, we find, that the High Court has totally erred in relying on the lease deed dated 12.3.1997, which was found to be insufficiently stamped and brushing aside the report of the Registrar (Judicial), when the respondents had failed to pay the insufficient stamp duty and penalty as determined by the Registrar (Judicial) of the High Court of Karnataka.
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SADANAND PUTHRAN Vs. UNITED INDIA INSURANCE CO. LTD | dated 4.4.2013 seeking pension on the basis of the 1995 Scheme, resting his case on the aforesaid judgment. There was no response to this representation, resulting in the appellant filing a writ petition before the Bombay High Court. The Division Bench of the Bombay High Court, in terms of the impugned judgment dated 07.04.2016 rejected the same. The reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporation (Employees’) Pension Fund while refunding the amount of Provident Fund contributed by the insurance company. These two aspects were stated to be absent in the case of the appellant, who had never opted for voluntary retirement within the requisite period nor refunded the amount, which were pre-requisites for availing the benefit of the new pension scheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance. The said clause reads as under: “(4A) Not-withstanding anything contained in the foregoing sub- paragraphs, an Officer or a person of the Development staff may be permitted, subject to vigilance clearance, to seek voluntary retirement, - (a) on completion of 55 years of age or at any time thereafter on giving ninety days notice in writing to the appointing authority of his intention to retire; or Provided that on a written request from an officer or a person of the Development Staff, such notice may be waived in full or in part by the appointing authority; or (b) in accordance with the provisions contained in paragraph 30 of the General Insurance (Employees’) Pension Scheme, 1995, made under section 17A of the General Insurance Business (Nationalisation) Act, 1972, (57 of 1972) and published under notification of the Government of India, in the Ministry of Finance (Department of Economic Affairs) Insurance Division number S.O. 585 (E) dated 28th June, 1995.” 30. The last relevant aspect is that the 1995 Scheme provided in clause 22 as under: “22. Forfeiture of service - Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.” 31. Thus, once again, there is this clause of forfeiture of service in case of resignation. 32. In order to elucidate the legal principle further, we may note that Sheel Kumar Jain took note of the judgment of the three Judges’ Bench in Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. & Ors. (1984) 3 SCC 369 An uncovenanted employee of respondent-Company, paid on a monthly basis, sought to recover a sum as gratuity, for continued service rendered over 29 years, under the Retiring Gratuity Rules, 1937, after having resigned from service. The employee was paid the provident fund dues. The High Court of Patna opined against the employee. When the matter reached this Court, one of the contentions raised by the respondent- Company was that the employee had resigned and not retired from service. It was noticed that Rule 1(g) defines ‘retirement’ as “the termination of service by reason of any cause other than removal by discharge due to misconduct.” The employee had not been removed by discharge due to misconduct. The termination of service, being on account of resignation, it was held to qualify within the definition of ‘retirement’ under the Rules. The rest of the judgment, dealing with the principles as to how gratuity should be treated, is not relevant. 33. We, thus, notice that all that was opined by the three Judges’ Bench in the aforesaid case was based on the definition of ‘retirement’ as per the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation as “premature retirement” is of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment. | 0[ds]12. A reading of the aforesaid clause shows that there is a specific exclusion of an employee in whose case the twin conditions of havingbefore the commencement of the Pension Rules and drawing of pension under the Staff Regulations is satisfied.Thus, the definition ofenvisages two eventualities – first a person who had retired in terms of the Staff Regulations; and secondly, a voluntary retirement under the provisions of the Pension Rules themselves.The aforesaid Rules, thus, show that resignation entails forfeiture of the entire past service and consequently would not qualify for pensionary benefits. Rule 31 deals with ‘Pension on voluntarywhich is admissible on completion of 20 years of qualifying service, with a notice of not less than 90 days inthe Pension Rules been only prospective in application, there is no doubt that Shree Lal Meena could not even have endeavoured to prefer a claim. In order to appreciate this aspect, the extent to which retrospectivity applies would have to be analysed, strictly on the basis of these Pension Rules, which are also contributory in their character.17. The undisputed fact is that as on the date when Shree Lal Meena was revolving the thought in his mind of voluntary retirement, there was no such provision in the Staff Regulations applicable. Thus, his repeated communications setting forth a thought process for ‘voluntaryhad no legal backing on that date. It is in these circumstances that no response was forthcoming to his letters, when he talked about a concept which did not exist. Conscious of this aspect and wanting to leave the services of the LIC, Shree Lal Meena took recourse to what was permissible on that date, i.e.,Section 3 of the Staff Regulations has a headingThe other expression used before the relevant Regulation 18 is ‘Determination ofThe Regulation itself uses the expression ‘leave orservice. In whatever manner these expressions are understood, in legal and common parlance, they amount to, first a unilateral act on the part of an employee, desirous of not continuing with her/his service with the employer and then, the acceptance of the same by the employer, subject to a notice period, which, in the present facts, had been waived at the request of the employee. Thus, on the relevant date he took a conscious decision to dis- engage himself from the services of the appellant, on the terms & conditions as prevalent on that date. As to what happened five years hence, in our view, would have no bearing on any benefit, which can accrue to such employee as a respondent, except to the extent which is specifically made applicable to him.What is most material is that the employee in this case had resigned. When the Pension Rules are applicable, and an employee resigns, the consequences are forfeiture of service, under Rule 23 of the Pension Rules. In our view, attempting to apply the Pension Rules to the respondent would be a self-defeating argument. As, suppose, the Pension Rules were applicable and the employee like the respondent was in service and sought to resign, the entire past service would be forfeited, and consequently, he would not qualify for pensionary benefits. To hold otherwise would imply that an employee resigning during the currency of the Rules would be deprived of pensionary benefits, while an employee who resigns when these Rules were not even in existence, would be given the benefit of these Rules.20. Now turning to the discussion of the judicial pronouncements in this behalf, we are of the view that any judgment has to be read for the law it lays down, by reference given to a factual matrix. Lines or sentences here and there should not be read in absolute terms, de hors the factual matrix in the context of which those observations were made.CIT v. Sun Engineering Works (P.) Ltd. (1992) 4 SCC 363. 21. The judgment in JK Cotton Spinning & Weaving Mills Co. Ltd., Kanpur has, thus, to be considered in that context. What was the issue in that case? The first paragraph of the judgment itself clarifies that aspect. Whether determination of an employer-employee relationship amounted to retrenchment, within the meaning of the provisions of the Act applicable is what was being looked into. We have already noticed, while referring to the facts of that case hereinbefore, that the employee in question tried to act clever by half. He firstly resigned. The resignation was accepted and the consequent monetary benefit flowed to him. Thereafter, he sought to bring his resignation within the meaning ofunder Section 2(s) read with Section 6N of the Uttar Pradesh Industrial Disputes Act, 1947. The definition ofitself clearly excluded voluntary retirement of the workman. The employee, having voluntarily resigned, the termination of relationship of employer and employee could not come within the meaning ofThis Court analysed the difference between the meaning of resignation and retrenchment. The resignation was voluntary. It is in this context that it was observed that a voluntary tendering of resignation would be similar to voluntary retirement and not retrenchment. Nothingmore and nothing less. Thus, in our view, the High Court, both the learned Single Judge and the Division Bench, appeared to have read much more into this judgment than the legal proposition which it sought to propound. The principles in the context of the controversy before us are well enunciated in the judgment of this Court in Reserve Bank of India & Anr. v. Cecil Dennis Solomon & Anr.On a similar factual matrix, the employees had resigned some time in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination.In our view, the aforesaid principles squarely apply in the facts of the present case and the relevant legal principles is that voluntary retirement is a concept read into a condition of service, which has to be created by a statutory provision, while resignation is the unilateral determination of an employer-employee relationship, whereby an employee cannot be a bonded labour.We may only note that in the above discussed judgement, an argument assailing the Regulation for forfeiture of service, based on Article 14 of the Constitution of India was repelled. The provisions under the new Regulations were held not to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service and, thus, being disentitled from having become a member of the fund. There are other judgments also in the same line, but not laying down any additional principles and, thus, it would suffice to just mention them, i.e. M.R. Prabhakar & Ors. v. Canara Bank & Ors. (2012) 9 SCC 671 and J.M. Singh v. Life Insurance Corporation of India & Ors. (2012) 9 SCC 671 25. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations.Shashikalav. Central Bank of India, (2014) 16 SCC 260 ; Asger Ibrahim Amin v. Life Insurance Corporation of India (2016) 13 SCC 797We may, however, note that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the Legislature, in its wisdom, brings forth certain beneficial provisions inThe reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporationscheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance.Thus, once again, there is this clause of forfeiture of service in case of resignation.We, thus, notice that all that was opined by the threeBench in the aforesaid case was based on the definition ofper the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation asis of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the41. A Division Bench of the Andhra Pradesh High Court, in terms of the impugned order dated 09.10.2015 rejected the petition filed by the appellants on the ground that when the appellants resigned, there was no Pension Regulations providing for voluntary retirement in existence, and merely because the Pension Regulations have been made applicable for persons retiring within a past period of window, it would not give the same benefit to the employees who had resigned from service. The reasoning of the judgment is predicated on M.R. Prabhakar & Ors. v. Canara Bank & Ors.It is relevant to note that M.R. Prabhakar & Ors. dealt with a similar scheme for employees of the Canara Bank, and the plea was that such of the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits. Suffice to say that, once again, the principle was of differentiation between the concept of ‘voluntaryRegulation 2(y) as applicable to the employees of Canara Bank, being pari materia to Rule 2(y) under the Pension Regulations of 1995, had brought in ‘voluntaryin the definition ofbut had not considered it appropriate to bring in the concept ofService jurisprudence, recognising the concept ofas different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations. | 0 | 7,017 | 2,142 | ### Instruction:
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dated 4.4.2013 seeking pension on the basis of the 1995 Scheme, resting his case on the aforesaid judgment. There was no response to this representation, resulting in the appellant filing a writ petition before the Bombay High Court. The Division Bench of the Bombay High Court, in terms of the impugned judgment dated 07.04.2016 rejected the same. The reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporation (Employees’) Pension Fund while refunding the amount of Provident Fund contributed by the insurance company. These two aspects were stated to be absent in the case of the appellant, who had never opted for voluntary retirement within the requisite period nor refunded the amount, which were pre-requisites for availing the benefit of the new pension scheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance. The said clause reads as under: “(4A) Not-withstanding anything contained in the foregoing sub- paragraphs, an Officer or a person of the Development staff may be permitted, subject to vigilance clearance, to seek voluntary retirement, - (a) on completion of 55 years of age or at any time thereafter on giving ninety days notice in writing to the appointing authority of his intention to retire; or Provided that on a written request from an officer or a person of the Development Staff, such notice may be waived in full or in part by the appointing authority; or (b) in accordance with the provisions contained in paragraph 30 of the General Insurance (Employees’) Pension Scheme, 1995, made under section 17A of the General Insurance Business (Nationalisation) Act, 1972, (57 of 1972) and published under notification of the Government of India, in the Ministry of Finance (Department of Economic Affairs) Insurance Division number S.O. 585 (E) dated 28th June, 1995.” 30. The last relevant aspect is that the 1995 Scheme provided in clause 22 as under: “22. Forfeiture of service - Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.” 31. Thus, once again, there is this clause of forfeiture of service in case of resignation. 32. In order to elucidate the legal principle further, we may note that Sheel Kumar Jain took note of the judgment of the three Judges’ Bench in Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. & Ors. (1984) 3 SCC 369 An uncovenanted employee of respondent-Company, paid on a monthly basis, sought to recover a sum as gratuity, for continued service rendered over 29 years, under the Retiring Gratuity Rules, 1937, after having resigned from service. The employee was paid the provident fund dues. The High Court of Patna opined against the employee. When the matter reached this Court, one of the contentions raised by the respondent- Company was that the employee had resigned and not retired from service. It was noticed that Rule 1(g) defines ‘retirement’ as “the termination of service by reason of any cause other than removal by discharge due to misconduct.” The employee had not been removed by discharge due to misconduct. The termination of service, being on account of resignation, it was held to qualify within the definition of ‘retirement’ under the Rules. The rest of the judgment, dealing with the principles as to how gratuity should be treated, is not relevant. 33. We, thus, notice that all that was opined by the three Judges’ Bench in the aforesaid case was based on the definition of ‘retirement’ as per the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation as “premature retirement” is of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment.
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had resigned some time in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination.In our view, the aforesaid principles squarely apply in the facts of the present case and the relevant legal principles is that voluntary retirement is a concept read into a condition of service, which has to be created by a statutory provision, while resignation is the unilateral determination of an employer-employee relationship, whereby an employee cannot be a bonded labour.We may only note that in the above discussed judgement, an argument assailing the Regulation for forfeiture of service, based on Article 14 of the Constitution of India was repelled. The provisions under the new Regulations were held not to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service and, thus, being disentitled from having become a member of the fund. There are other judgments also in the same line, but not laying down any additional principles and, thus, it would suffice to just mention them, i.e. M.R. Prabhakar & Ors. v. Canara Bank & Ors. (2012) 9 SCC 671 and J.M. Singh v. Life Insurance Corporation of India & Ors. (2012) 9 SCC 671 25. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations.Shashikalav. Central Bank of India, (2014) 16 SCC 260 ; Asger Ibrahim Amin v. Life Insurance Corporation of India (2016) 13 SCC 797We may, however, note that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the Legislature, in its wisdom, brings forth certain beneficial provisions inThe reasoning of the Division Bench was that the case of the appellant was of resignation and not of voluntary retirement. The appellant had tendered his resignation before 1.11.1993, while the conditions for availing of the benefit were: (i) the employees must have retired on or after 1.11.1993, and before the notified date; and (ii) the employee must have exercised the option to voluntarily retire within 120 days from the notified date, to become a member of the General Insurance Corporationscheme.29. The opinion of the Division Bench was also based on a relevant fact, that the condition in terms of clause 4(4A) required completion of 55 years of age, while the appellant was not of 55 years of age on the date of his resignation or its acceptance.Thus, once again, there is this clause of forfeiture of service in case of resignation.We, thus, notice that all that was opined by the threeBench in the aforesaid case was based on the definition ofper the Retiring Gratuity Rules, 1937, which was expansive and all inclusive, excluding only the removal by discharge due to misconduct. Thus, nothing more could have been read into this judgment.34. We may also add that there are some observations in the aforesaid case that pension and gratuity are both retiral benefits and an employee, with long years of service should be assured social security to some extent, in the form of either pension or gratuity or provident fund, whichever retiral benefit is operative in the industrial establishment. In the given facts of the appeal before us, the benefit of provident fund has been given as that was the scheme applicable at the relevant stage of time. The principle laid down is not that all of them should be simultaneously be granted, but that, at least one of them should be granted, though there is no prohibition against more than one being granted.35. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation asis of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the41. A Division Bench of the Andhra Pradesh High Court, in terms of the impugned order dated 09.10.2015 rejected the petition filed by the appellants on the ground that when the appellants resigned, there was no Pension Regulations providing for voluntary retirement in existence, and merely because the Pension Regulations have been made applicable for persons retiring within a past period of window, it would not give the same benefit to the employees who had resigned from service. The reasoning of the judgment is predicated on M.R. Prabhakar & Ors. v. Canara Bank & Ors.It is relevant to note that M.R. Prabhakar & Ors. dealt with a similar scheme for employees of the Canara Bank, and the plea was that such of the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits. Suffice to say that, once again, the principle was of differentiation between the concept of ‘voluntaryRegulation 2(y) as applicable to the employees of Canara Bank, being pari materia to Rule 2(y) under the Pension Regulations of 1995, had brought in ‘voluntaryin the definition ofbut had not considered it appropriate to bring in the concept ofService jurisprudence, recognising the concept ofas different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations.
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M/S. Medley Minerals India Ltd Vs. State Of Orissa | Rule 9. It is also clear that even at that time the application for transfer of the quarry lease was pending with the State Government. The State Governments order was made on 5th February 2003 and the transfer deed was executed on 7th February, 2003. The transfer of lease was only for the unexpired period i.e. from 7.2.2003 to 10.2.2003. Thus it was impossible for the appellant to have complied with the requirements of Rule 9(2), namely, to make an application in Form E at least 90 days before the expiry of the lease. He also drew our attention to Rule 31 under which the State Government is empowered in the interest of mineral development, to relax the provisions of these rules in deserving cases in such manner as they deem proper". Learned counsel contended that in the circumstances the State Government was fully justified in relaxing the rules and treating the application dated 7.2.2003 as continuation of the earlier application of Jitendra Kumar Lohia for renewal of the lease. Thus, according to the learned counsel, the High Court was not justified in quashing the renewal of the quarry lease in favour of the appellant. 14. The learned counsel for the State Government supported the view canvassed by the appellants counsel.15. The learned counsel for the fourth respondent contended that there was no such relaxation at all as evident from the impugned order. He pointed out from the recital in the impugned order that what had been relaxed was only prescribed time limit for disposal of the application as provided in proviso to sub-rule (3) of Rule 6 of the OOMC Rules in exercise of the State Governments power of relaxation under Rule 31. The learned counsel pointed out that Rule 6(3) was only the rule which laid down the period within which the application by the competent authority is required to be disposed of. As a matter of fact, sub-rule (3) of Rule 6 was omitted w.e.f. 8.2.1994 and was not even in existence on the date on which the State Government made the impugned order. He also alleged that application for renewal was granted contrary to the provisions of Rule 9 and was vitiated by malafides.16. We are unable to accept the contention of the learned counsel for the 4th respondent that the action of the State Government was vitiated by malafides. It is trite that plea of malafides has to be specific and demonstrable. Not only this, but the person against whom the malafides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged was contravention of the Rules and, consequently, legal malafides and nothing beyond that. The argument of malafides must therefore fail. Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Jitendra Kumar Lohia could not have enured to the benefit of the appellant company. According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, the assumption of the State Government, that the application for renewal of the quarry lease could be treated as a continuation of Jitendra Kumar Lohias application, was erroneous and unsustainable in law. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enuring for the benefit of the appellant company. If the State Government had treated them to be separate legal entities, there was no question of imposing a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie this contention of the learned counsel for the fourth respondent. It cannot be accepted.17. Learned counsel for the fourth respondent took us through the provisions of Rule 9 and contended that there is contravention of the proviso to Rule 9(3). In fact, we find no such contention urged or accepted before the High Court as evidenced from its judgment. On the contrary, the judgment of the High Court clearly holds that there was no contravention of the proviso to Rule 9(3). The writ petition succeeded only on the sole ground that there was contravention of Rule 9(2) inasmuch as the application of a renewal made by the appellant company was not made at least 90 days before the expiry of the lease. Barring this contention, nothing else seems to have appealed to the High Court.18. The contention, in our view, has no substance for two reasons. First, the State Government was justified in treating the appellants application as continuation of the application for renewal of the lease made by Jitendra Kumar Lohia. Secondly, the State Government had enough powers to relax the provisions of the Rules in the interest of mineral development in deserving cases in such manner as they deem proper". True, that the order of the State Government quotes a wrong rule for relaxation, but, that, in our view hardly matters. As long as the State Government had the power of relaxation, then irrespective of any recitation, it must construed that the State Government has in its discretion made the order by exercising its power of relaxation. Looked at from this point of view, we find no substance in the contention.19. In the result, we are of the opinion that the High Court erred in quashing the order No. 5507/IV(E)(DS)/SM 4/2003 dated 22nd May 2003, by which the quarry lease had been renewed in favour of the appellant company. | 1[ds]We are unable to accept thehe learned counsel for the 4th respondent that theof the State Governmentwas vitiated by malafides. It is trite that plea of malafides has to be specific and demonstrable. Not only this, but the person against whom the malafides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged wasof the Rulesand, consequently, legal malafides and nothing beyond that. The argument of malafides must therefore fail.Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Jitendra Kumar Lohia could not havehe benefit of the appellant company.According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, theof the StateGovernment, that the application for renewal of the quarry lease could be treated as aof Jitendra KumarLohias application, was erroneous and unsustainable inlaw. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enuring forbenefit of the appellant company.If the State Government had treated them to be separate legal entities, there was nong a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie thishe learned counsel for the fourth respondent. It cannot be accepted.17. Learned counsel for the fourth respondent took us through the provisions of Rule 9 and contended that there ishe proviso to Rule 9(3). In fact, we find no such contention urged or accepted before the High Court as evidenced from its judgment. On the contrary, the judgment of the High Court clearly holds that there was nohe proviso to Rule 9(3). The writ petition succeeded only on the sole ground that there wasof Rule 9(2)inasmuch as thea renewal made by the appellant company was not made at least 90 days before the expiry of the lease. Barring this contention, nothing else seems to haveHigh Court.18. The contention, in our view, has no substance for two reasons. First, the State Government was justified in treating the appellants application asof the applicationfor renewal of the lease made by Jitendra Kumar Lohia. Secondly, the State Government had enough powers to relax the provisionsof the Rulesin the interest of mineral development in deserving cases in such manner as they deem proper". True, that the orderof the Statequotes a wrong rule for relaxation, but, that, in our view hardly matters. As long as the State Government had the power of relaxation, then irrespective of any recitation, it must construed that the State Government has in its discretion made the order by exercising its power of relaxation. Looked at from this point of view, we find no substance in the contention.19. In the result, we are of the opinion that the High Court erred in quashing the order No. 5507/IV(E)(DS)/SM 4/2003 dated 22nd May 2003, by which the quarry lease had been renewed in favour of the appellant company. | 1 | 2,820 | 654 | ### Instruction:
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Rule 9. It is also clear that even at that time the application for transfer of the quarry lease was pending with the State Government. The State Governments order was made on 5th February 2003 and the transfer deed was executed on 7th February, 2003. The transfer of lease was only for the unexpired period i.e. from 7.2.2003 to 10.2.2003. Thus it was impossible for the appellant to have complied with the requirements of Rule 9(2), namely, to make an application in Form E at least 90 days before the expiry of the lease. He also drew our attention to Rule 31 under which the State Government is empowered in the interest of mineral development, to relax the provisions of these rules in deserving cases in such manner as they deem proper". Learned counsel contended that in the circumstances the State Government was fully justified in relaxing the rules and treating the application dated 7.2.2003 as continuation of the earlier application of Jitendra Kumar Lohia for renewal of the lease. Thus, according to the learned counsel, the High Court was not justified in quashing the renewal of the quarry lease in favour of the appellant. 14. The learned counsel for the State Government supported the view canvassed by the appellants counsel.15. The learned counsel for the fourth respondent contended that there was no such relaxation at all as evident from the impugned order. He pointed out from the recital in the impugned order that what had been relaxed was only prescribed time limit for disposal of the application as provided in proviso to sub-rule (3) of Rule 6 of the OOMC Rules in exercise of the State Governments power of relaxation under Rule 31. The learned counsel pointed out that Rule 6(3) was only the rule which laid down the period within which the application by the competent authority is required to be disposed of. As a matter of fact, sub-rule (3) of Rule 6 was omitted w.e.f. 8.2.1994 and was not even in existence on the date on which the State Government made the impugned order. He also alleged that application for renewal was granted contrary to the provisions of Rule 9 and was vitiated by malafides.16. We are unable to accept the contention of the learned counsel for the 4th respondent that the action of the State Government was vitiated by malafides. It is trite that plea of malafides has to be specific and demonstrable. Not only this, but the person against whom the malafides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged was contravention of the Rules and, consequently, legal malafides and nothing beyond that. The argument of malafides must therefore fail. Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Jitendra Kumar Lohia could not have enured to the benefit of the appellant company. According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, the assumption of the State Government, that the application for renewal of the quarry lease could be treated as a continuation of Jitendra Kumar Lohias application, was erroneous and unsustainable in law. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enuring for the benefit of the appellant company. If the State Government had treated them to be separate legal entities, there was no question of imposing a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie this contention of the learned counsel for the fourth respondent. It cannot be accepted.17. Learned counsel for the fourth respondent took us through the provisions of Rule 9 and contended that there is contravention of the proviso to Rule 9(3). In fact, we find no such contention urged or accepted before the High Court as evidenced from its judgment. On the contrary, the judgment of the High Court clearly holds that there was no contravention of the proviso to Rule 9(3). The writ petition succeeded only on the sole ground that there was contravention of Rule 9(2) inasmuch as the application of a renewal made by the appellant company was not made at least 90 days before the expiry of the lease. Barring this contention, nothing else seems to have appealed to the High Court.18. The contention, in our view, has no substance for two reasons. First, the State Government was justified in treating the appellants application as continuation of the application for renewal of the lease made by Jitendra Kumar Lohia. Secondly, the State Government had enough powers to relax the provisions of the Rules in the interest of mineral development in deserving cases in such manner as they deem proper". True, that the order of the State Government quotes a wrong rule for relaxation, but, that, in our view hardly matters. As long as the State Government had the power of relaxation, then irrespective of any recitation, it must construed that the State Government has in its discretion made the order by exercising its power of relaxation. Looked at from this point of view, we find no substance in the contention.19. In the result, we are of the opinion that the High Court erred in quashing the order No. 5507/IV(E)(DS)/SM 4/2003 dated 22nd May 2003, by which the quarry lease had been renewed in favour of the appellant company.
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We are unable to accept thehe learned counsel for the 4th respondent that theof the State Governmentwas vitiated by malafides. It is trite that plea of malafides has to be specific and demonstrable. Not only this, but the person against whom the malafides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing. We find no such attempt made in the writ petition before the High Court. At the highest even putting the most liberal construction on the writ petition, what was alleged wasof the Rulesand, consequently, legal malafides and nothing beyond that. The argument of malafides must therefore fail.Next, it is urged by the learned counsel for the respondent that it is an elementary principle of law that an individual shareholder of a company cannot be considered as equivalent to the company, for company has a distinct legal personality. Consequently, he contends that the application made by Jitendra Kumar Lohia could not havehe benefit of the appellant company.According to him, Jitendra Kumar Lohia and the appellant being two distinct legal entities, theof the StateGovernment, that the application for renewal of the quarry lease could be treated as aof Jitendra KumarLohias application, was erroneous and unsustainable inlaw. We are unable to accept this contention. We have highlighted as to how the State Government and Jitendra Kumar Lohia treated the application for renewal of quarry lease made by Jitendra Kumar Lohia as enuring forbenefit of the appellant company.If the State Government had treated them to be separate legal entities, there was nong a condition on the appellant that the transfer of the lease was granted on the specific condition that Jitendra Kumar Lohia and his family members hold the controlling interest in the company. The facts and circumstances belie thishe learned counsel for the fourth respondent. It cannot be accepted.17. Learned counsel for the fourth respondent took us through the provisions of Rule 9 and contended that there ishe proviso to Rule 9(3). In fact, we find no such contention urged or accepted before the High Court as evidenced from its judgment. On the contrary, the judgment of the High Court clearly holds that there was nohe proviso to Rule 9(3). The writ petition succeeded only on the sole ground that there wasof Rule 9(2)inasmuch as thea renewal made by the appellant company was not made at least 90 days before the expiry of the lease. Barring this contention, nothing else seems to haveHigh Court.18. The contention, in our view, has no substance for two reasons. First, the State Government was justified in treating the appellants application asof the applicationfor renewal of the lease made by Jitendra Kumar Lohia. Secondly, the State Government had enough powers to relax the provisionsof the Rulesin the interest of mineral development in deserving cases in such manner as they deem proper". True, that the orderof the Statequotes a wrong rule for relaxation, but, that, in our view hardly matters. As long as the State Government had the power of relaxation, then irrespective of any recitation, it must construed that the State Government has in its discretion made the order by exercising its power of relaxation. Looked at from this point of view, we find no substance in the contention.19. In the result, we are of the opinion that the High Court erred in quashing the order No. 5507/IV(E)(DS)/SM 4/2003 dated 22nd May 2003, by which the quarry lease had been renewed in favour of the appellant company.
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State Of Maharashtra Vs. Priya Sharan Maharaj | important and material.These three girls levelled allegations against the applicant No. 2 Kripaluji Maharaj after the lapse of considerable time i.e. after months and years and, therefore, the probability as depicted by the defence that it was at the instance of Nityanand, cannot be overruled. It needs mention that no report was lodged by either of the girls at any time. It is also clear from the record that Nityanands statement which was recorded on 11.5.1991 i.e. on the day on which the FIR was lodged by Purushottam Deshapnde. Subsequently only the statements of all the three prosecutrix came to be recorded. Even in the FIR there is no whisper that any time, the applicant No. 2 had committed rape on any of the prosecutrix or on any other disciples.So the evidence does not become reliable merely because it has been corroborated by a number of witnesses of the same brand.In this case, there is unreasonable, inordinate or extraordinary delay in levelling allegations of physical molestation or rape committed, by all the three prosecutrix against a saintly old man of 69 years of age who renounced the world and engrossed in spiritual world. The explanation as could be revealed from the statements of the prosecutrix that the disciples of Kripaluji Maharaj all the while stated that he is an incaranation of God and whatever happened with them, be taken as a `Prasad or blessing of God and so not to disclose to any one, is difficult to digest as the chastity is the jewel of the Indian woman and no woman will consider the sexual intercourse against her will as `Prasad or `Blessing of God.It also does not stand to reason that a saintly man who has thousands/millions of disciples all over India, direct his own disciple and in their presence will commit sexual intercourse with the pracharak of his cult.Considering the overall effect of the evidence collected by the prosecution, there is, according to me, no ring of truth. No prudent man can dare to accept or believe the infirm and improbable evidence of the prosecutrix.All these facts go to show that the girls evidently told lies and developed false story against the applicant No. 2 and his disciples." 12. The above quoted paragraphs from the judgment clearly disclose that the High Court was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousands/millions of disciples all over India would commit sexual intercourse with the pracharak of his cult in presence of his disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements, they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modis textbook on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the court as false and discharging the accused on that ground. 13. Before us also the learned counsel for the respondents had made a grievance that the charge as framed was not in accordance with Section 219 of the Criminal Procedure Code. The application, Exhibit 36, was made to the Sessions Court for modification of the charge so as to make it consistent with Section 219. That application was not pressed and the court was invited to dispose of the other applications made by them for quashing the charge and discharging them. As we are inclined to allow this appeal, the Sessions Court will have to now consider afresh whether the charge is required to be altered or amended. | 1[ds]8. The law on the subject is now well-settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bhimaraj Bijja, JT 1990(3) SC 408 : 1990(4) SCC 76, that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.9. What we find from the judgment of the High Court is that the learned Judge, in order to ascertain the correct legal position, referred to various decisions and quoted extensively from them but did not apply the law correctly.The above quoted paragraphs from the judgment clearly disclose that the High Court was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousands/millions of disciples all over India would commit sexual intercourse with the pracharak of his cult in presence of his disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements, they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modis textbook on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the court as false and discharging the accused on thatapplication, Exhibit 36, was made to the Sessions Court for modification of the charge so as to make it consistent with Section 219. That application was not pressed and the court was invited to dispose of the other applications made by them for quashing the charge and discharging them. As we are inclined to allow this appeal, the Sessions Court will have to now consider afresh whether the charge is required to be altered or amended. | 1 | 3,384 | 875 | ### 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:
important and material.These three girls levelled allegations against the applicant No. 2 Kripaluji Maharaj after the lapse of considerable time i.e. after months and years and, therefore, the probability as depicted by the defence that it was at the instance of Nityanand, cannot be overruled. It needs mention that no report was lodged by either of the girls at any time. It is also clear from the record that Nityanands statement which was recorded on 11.5.1991 i.e. on the day on which the FIR was lodged by Purushottam Deshapnde. Subsequently only the statements of all the three prosecutrix came to be recorded. Even in the FIR there is no whisper that any time, the applicant No. 2 had committed rape on any of the prosecutrix or on any other disciples.So the evidence does not become reliable merely because it has been corroborated by a number of witnesses of the same brand.In this case, there is unreasonable, inordinate or extraordinary delay in levelling allegations of physical molestation or rape committed, by all the three prosecutrix against a saintly old man of 69 years of age who renounced the world and engrossed in spiritual world. The explanation as could be revealed from the statements of the prosecutrix that the disciples of Kripaluji Maharaj all the while stated that he is an incaranation of God and whatever happened with them, be taken as a `Prasad or blessing of God and so not to disclose to any one, is difficult to digest as the chastity is the jewel of the Indian woman and no woman will consider the sexual intercourse against her will as `Prasad or `Blessing of God.It also does not stand to reason that a saintly man who has thousands/millions of disciples all over India, direct his own disciple and in their presence will commit sexual intercourse with the pracharak of his cult.Considering the overall effect of the evidence collected by the prosecution, there is, according to me, no ring of truth. No prudent man can dare to accept or believe the infirm and improbable evidence of the prosecutrix.All these facts go to show that the girls evidently told lies and developed false story against the applicant No. 2 and his disciples." 12. The above quoted paragraphs from the judgment clearly disclose that the High Court was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousands/millions of disciples all over India would commit sexual intercourse with the pracharak of his cult in presence of his disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements, they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modis textbook on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the court as false and discharging the accused on that ground. 13. Before us also the learned counsel for the respondents had made a grievance that the charge as framed was not in accordance with Section 219 of the Criminal Procedure Code. The application, Exhibit 36, was made to the Sessions Court for modification of the charge so as to make it consistent with Section 219. That application was not pressed and the court was invited to dispose of the other applications made by them for quashing the charge and discharging them. As we are inclined to allow this appeal, the Sessions Court will have to now consider afresh whether the charge is required to be altered or amended.
### Response:
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### Explanation:
8. The law on the subject is now well-settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bhimaraj Bijja, JT 1990(3) SC 408 : 1990(4) SCC 76, that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.9. What we find from the judgment of the High Court is that the learned Judge, in order to ascertain the correct legal position, referred to various decisions and quoted extensively from them but did not apply the law correctly.The above quoted paragraphs from the judgment clearly disclose that the High Court was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousands/millions of disciples all over India would commit sexual intercourse with the pracharak of his cult in presence of his disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements, they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modis textbook on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the court as false and discharging the accused on thatapplication, Exhibit 36, was made to the Sessions Court for modification of the charge so as to make it consistent with Section 219. That application was not pressed and the court was invited to dispose of the other applications made by them for quashing the charge and discharging them. As we are inclined to allow this appeal, the Sessions Court will have to now consider afresh whether the charge is required to be altered or amended.
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Tamil Nadu Vs. P.Krishnamurthy | which are referred to in section 4A as grounds for premature termination. When the Act requires a hearing for termination on such grounds, it is inconceivable that the delegate will be permitted to exercise the power of termination on such grounds without a hearing. 21. If a rule is partly valid and partly invalid, the part that is valid and severable is saved. Even the part which is found to be invalid, can be read down to avoid being declared as invalid. We have already held that premature termination of existing leases, in law, can be only after granting a hearing as required under sub-section (3) of section 4A for any of the reasons mentioned in section 4A(1) or (2). Therefore, let us examine whether we can save the offending part of Rule 38A (which terminates quarrying leases/permissions forthwith) by reading it down. Apart from the statutory provision for termination in section 4A(3), there is a contractual provision for termination in the mining leases granted by the State Government. This provision enables either party to terminate the lease by six months notice. No cause need be shown for such termination nor such termination entails payment of compensation or other penal consequences. In this case, after considering the High Level Committee Report, the State has taken a decision that all quarrying by private agencies in pursuance of the quarrying leases granted in regard government lands or permissions granted in respect of ryotwari land should be terminated in public interest. If Rule 38A is read down as terminating all mining leases granted by the government by six months notice (in terms of clause 11 in the lease deeds based on the model form at Appendix 1 to the Rules) or for the remainder period of the lease whichever is less, it can be saved, as it will then terminate the leases after notice, in terms of the lease. Whether conditions imposed by High Court require to be modified ?22. The respondents submitted that from 2.10.2003 when Rule 38A was inserted, the State Government had prevented the existing leaseholders/permission holders from quarrying and removing sand. It is submitted that on 8.10.2003, the Division Bench issued a direction that neither party should quarry sand in regard to the area covered by the existing leases and that order was in force till the disposal of the writ petitions. On 11.5.2004, the writ petitions were disposed of upholding Rule 38A and, at the same time, recognizing the right of the existing leaseholders to continue with the quarrying operations till the expiry of their respective lease period. It is submitted that in spite of the said judgment, the State did not permit the lease holders to carry on quarrying operations, apparently, in view of its decision to challenge the said judgment. The State filed the SLPs in November, 2004. As this Court did not stay the order of the High Court, the state government was bound to permit the Respondents to carry on quarrying operations in terms of the order of the High Court, but did not do so. The respondents, therefore, submit that they should be permitted to continue quarrying operations for the unexpired periods of lease as on 2.10.2003. They rely on the decision of this Court in Beg Raj Singh V. State of U.P. [2003 (1) SCC 726 ], wherein the lease holders were permitted to carry on operations during the lease period of three years, subject to adjustment of the period during which they have already operated. 23. On the other hand, learned counsel for the State Government, submitted that Rule 38-A was made to prevent environmental degradation and indiscriminate quarrying and, therefore, if the leaseholders are permitted to continue the quarrying operations, the very purpose of Rule 38A will be defeated. 24. It is not the case of the State that all the leaseholders have violated the terms of the lease or acted in a manner detrimental to environment. Learned counsel appearing for the State, in fact, fairly admitted that several leaseholders had carried on quarrying activities without violating the terms of lease and without causing environmental degradation. If any leaseholder had acted or acts in a manner likely to result in environmental degradation etc., it is always open to the State Government to terminate the lease after giving a hearing, as provided in section 4A(3).25. Section 4A(3) requires the grant of an opportunity of hearing only for premature termination of mining leases (and prospective licences with which we are not concerned). If anyone was carrying on quarrying of sand as on 2.10.2003 in whatsoever circumstances other than in pursuance of mining leases, there is no question of hearing them before stopping quarrying activities in pursuance of Rule 38A, as hearing is required only in regard to those holding subsisting leases. Therefore, all quarrying permits for sand stood terminated with effect from 2.10.2003. All quarrying by any person, other than those holding mining leases also ceased with effect from 2.10.2003.26. In regard to mining leases subsisting as on 2.10.2003, we have read down Rule 38A as terminating such leases in terms of the contract (lease deeds) by six months, without assigning cause and without any liability to pay compensation. Such of those writ petitioners (Respondents herein) whose leases were subsisting on 2.10.2003 (and whose activities were stopped with effect from that day) will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of the lease (as on 2.10.2003), whichever is less. This benefit will be available to even those who have orders of court for grant of mining leases, but where mining leases were not executed for one reason or the other. It is, however, made clear that the State Government is at liberty to prematurely terminate the leases for any of the causes mentioned in section 4A(2), by giving a notice and hearing under Section 4A(3), if they want to terminate any lease within the said period of six months. | 1[ds]12. There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it iscourt considering the validity of a sub-ordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity.There is no dispute that making of Rule 38A is a legislative act and not an administrative act. It is no doubt true that an act which is legislative in character, as contrasted from an executive act or a judicial/quasi-judicial function, does not oblige the observance of rules of naturalWhen the Act is read as a whole, the legislative intent is clear that a lease once validly granted can not be terminated prematurely without a notice and hearing. The reason is obvious. Exercise of power of termination will have civil consequences adversely affecting the interest of the lease-holders. We may refer to the three sections inserted by Act 37 of 1986 with effect from 10.2.1987, in this behalf. Section 24A deals with the rights and liabilities of a holder of a mining lease. It provides that on issue of a mining lease under the Act or the Rules made thereunder, it shall be lawful for the holder of such lease, to enter upon the leased land, at all times during its currency for carrying on mining operations. Sub-section (1) and (2) of Section 4A contemplates premature termination only when the concerned government is of the view that it is expedient to do so, in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, to prevent pollution or to avoid danger to public health or communication or to ensure safety of buildings, monuments or other structures or for such other purposes. Sub-section (3) of Section 4A prohibits any order of a premature termination of a mining lease being made, without giving a hearing to the lease holder. The Act does not contemplate wholesale termination of all existing leases/permissions in relation to a minor mineral without hearing. Section 17-A while empowering Central Government to reserve areas for purposes of conservation of minerals, and empowering Central/State Government to reserve areas for mining operation by Government Companies/Corporations, specifically exclude areas already held under mining leases. Even, section 17 while referring to the power of the Central Government to undertake mining operations exclusively in any area, excludes areas already held under mining leases. It is, thus, clear that the Act extends a statutory protection to the holder of a mining lease to carry on mining operations during the period of lease, in terms of the lease deed. The Act further contemplates premature termination only for the reasons stated in sub-section (1) or (2) of section 4A and in the manner provided in sub-section (3) of section 4A. There is no doubt that the Legislature can make a provision in the Statute itself for termination of the mining leases without observance or principles of natural justice. It did not choose to do so. When the Act assures the Lessee the right to carry on mining operations during the entire period of lease and provides for termination only after giving a hearing, the delegate cannot, while making a rule in exercise of the power granted under the Act, make a provision for termination of all leases relating to a particular minor mineral, without giving an opportunity of hearing to the lease/permission holders. That part of Rule 38A which purports to terminate all leases forthwith, without notice or hearing to the lessees, does not conform to the object, scheme and the provisions of the Act under which it is made and therefore, invalid.If a rule is partly valid and partly invalid, the part that is valid and severable is saved. Even the part which is found to be invalid, can be read down to avoid being declared as invalid. We have already held that premature termination of existing leases, in law, can be only after granting a hearing as required under sub-section (3) of section 4A for any of the reasons mentioned in section 4A(1) or (2). Therefore, let us examine whether we can save the offending part of Rule 38A (which terminates quarrying leases/permissions forthwith) by reading it down. Apart from the statutory provision for termination in section 4A(3), there is a contractual provision for termination in the mining leases granted by the State Government. This provision enables either party to terminate the lease by six months notice. No cause need be shown for such termination nor such termination entails payment of compensation or other penal consequences. In this case, after considering the High Level Committee Report, the State has taken a decision that all quarrying by private agencies in pursuance of the quarrying leases granted in regard government lands or permissions granted in respect of ryotwari land should be terminated in public interest. If Rule 38A is read down as terminating all mining leases granted by the government by six months notice (in terms of clause 11 in the lease deeds based on the model form at Appendix 1 to the Rules) or for the remainder period of the lease whichever is less, it can be saved, as it will then terminate the leases after notice, in terms of the lease.It is not the case of the State that all the leaseholders have violated the terms of the lease or acted in a manner detrimental to environment. Learned counsel appearing for the State, in fact, fairly admitted that several leaseholders had carried on quarrying activities without violating the terms of lease and without causing environmental degradation. If any leaseholder had acted or acts in a manner likely to result in environmental degradation etc., it is always open to the State Government to terminate the lease after giving a hearing, as provided in section 4A(3).25. Section 4A(3) requires the grant of an opportunity of hearing only for premature termination of mining leases (and prospective licences with which we are not concerned). If anyone was carrying on quarrying of sand as on 2.10.2003 in whatsoever circumstances other than in pursuance of mining leases, there is no question of hearing them before stopping quarrying activities in pursuance of Rule 38A, as hearing is required only in regard to those holding subsisting leases. Therefore, all quarrying permits for sand stood terminated with effect from 2.10.2003. All quarrying by any person, other than those holding mining leases also ceased with effect from 2.10.2003.26. In regard to mining leases subsisting as on 2.10.2003, we have read down Rule 38A as terminating such leases in terms of the contract (lease deeds) by six months, without assigning cause and without any liability to pay compensation. Such of those writ petitioners (Respondents herein) whose leases were subsisting on 2.10.2003 (and whose activities were stopped with effect from that day) will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of the lease (as on 2.10.2003), whichever is less. This benefit will be available to even those who have orders of court for grant of mining leases, but where mining leases were not executed for one reason or the other. It is, however, made clear that the State Government is at liberty to prematurely terminate the leases for any of the causes mentioned in section 4A(2), by giving a notice and hearing under Section 4A(3), if they want to terminate any lease within the said period of six months. | 1 | 8,427 | 1,499 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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which are referred to in section 4A as grounds for premature termination. When the Act requires a hearing for termination on such grounds, it is inconceivable that the delegate will be permitted to exercise the power of termination on such grounds without a hearing. 21. If a rule is partly valid and partly invalid, the part that is valid and severable is saved. Even the part which is found to be invalid, can be read down to avoid being declared as invalid. We have already held that premature termination of existing leases, in law, can be only after granting a hearing as required under sub-section (3) of section 4A for any of the reasons mentioned in section 4A(1) or (2). Therefore, let us examine whether we can save the offending part of Rule 38A (which terminates quarrying leases/permissions forthwith) by reading it down. Apart from the statutory provision for termination in section 4A(3), there is a contractual provision for termination in the mining leases granted by the State Government. This provision enables either party to terminate the lease by six months notice. No cause need be shown for such termination nor such termination entails payment of compensation or other penal consequences. In this case, after considering the High Level Committee Report, the State has taken a decision that all quarrying by private agencies in pursuance of the quarrying leases granted in regard government lands or permissions granted in respect of ryotwari land should be terminated in public interest. If Rule 38A is read down as terminating all mining leases granted by the government by six months notice (in terms of clause 11 in the lease deeds based on the model form at Appendix 1 to the Rules) or for the remainder period of the lease whichever is less, it can be saved, as it will then terminate the leases after notice, in terms of the lease. Whether conditions imposed by High Court require to be modified ?22. The respondents submitted that from 2.10.2003 when Rule 38A was inserted, the State Government had prevented the existing leaseholders/permission holders from quarrying and removing sand. It is submitted that on 8.10.2003, the Division Bench issued a direction that neither party should quarry sand in regard to the area covered by the existing leases and that order was in force till the disposal of the writ petitions. On 11.5.2004, the writ petitions were disposed of upholding Rule 38A and, at the same time, recognizing the right of the existing leaseholders to continue with the quarrying operations till the expiry of their respective lease period. It is submitted that in spite of the said judgment, the State did not permit the lease holders to carry on quarrying operations, apparently, in view of its decision to challenge the said judgment. The State filed the SLPs in November, 2004. As this Court did not stay the order of the High Court, the state government was bound to permit the Respondents to carry on quarrying operations in terms of the order of the High Court, but did not do so. The respondents, therefore, submit that they should be permitted to continue quarrying operations for the unexpired periods of lease as on 2.10.2003. They rely on the decision of this Court in Beg Raj Singh V. State of U.P. [2003 (1) SCC 726 ], wherein the lease holders were permitted to carry on operations during the lease period of three years, subject to adjustment of the period during which they have already operated. 23. On the other hand, learned counsel for the State Government, submitted that Rule 38-A was made to prevent environmental degradation and indiscriminate quarrying and, therefore, if the leaseholders are permitted to continue the quarrying operations, the very purpose of Rule 38A will be defeated. 24. It is not the case of the State that all the leaseholders have violated the terms of the lease or acted in a manner detrimental to environment. Learned counsel appearing for the State, in fact, fairly admitted that several leaseholders had carried on quarrying activities without violating the terms of lease and without causing environmental degradation. If any leaseholder had acted or acts in a manner likely to result in environmental degradation etc., it is always open to the State Government to terminate the lease after giving a hearing, as provided in section 4A(3).25. Section 4A(3) requires the grant of an opportunity of hearing only for premature termination of mining leases (and prospective licences with which we are not concerned). If anyone was carrying on quarrying of sand as on 2.10.2003 in whatsoever circumstances other than in pursuance of mining leases, there is no question of hearing them before stopping quarrying activities in pursuance of Rule 38A, as hearing is required only in regard to those holding subsisting leases. Therefore, all quarrying permits for sand stood terminated with effect from 2.10.2003. All quarrying by any person, other than those holding mining leases also ceased with effect from 2.10.2003.26. In regard to mining leases subsisting as on 2.10.2003, we have read down Rule 38A as terminating such leases in terms of the contract (lease deeds) by six months, without assigning cause and without any liability to pay compensation. Such of those writ petitioners (Respondents herein) whose leases were subsisting on 2.10.2003 (and whose activities were stopped with effect from that day) will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of the lease (as on 2.10.2003), whichever is less. This benefit will be available to even those who have orders of court for grant of mining leases, but where mining leases were not executed for one reason or the other. It is, however, made clear that the State Government is at liberty to prematurely terminate the leases for any of the causes mentioned in section 4A(2), by giving a notice and hearing under Section 4A(3), if they want to terminate any lease within the said period of six months.
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do so, in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, to prevent pollution or to avoid danger to public health or communication or to ensure safety of buildings, monuments or other structures or for such other purposes. Sub-section (3) of Section 4A prohibits any order of a premature termination of a mining lease being made, without giving a hearing to the lease holder. The Act does not contemplate wholesale termination of all existing leases/permissions in relation to a minor mineral without hearing. Section 17-A while empowering Central Government to reserve areas for purposes of conservation of minerals, and empowering Central/State Government to reserve areas for mining operation by Government Companies/Corporations, specifically exclude areas already held under mining leases. Even, section 17 while referring to the power of the Central Government to undertake mining operations exclusively in any area, excludes areas already held under mining leases. It is, thus, clear that the Act extends a statutory protection to the holder of a mining lease to carry on mining operations during the period of lease, in terms of the lease deed. The Act further contemplates premature termination only for the reasons stated in sub-section (1) or (2) of section 4A and in the manner provided in sub-section (3) of section 4A. There is no doubt that the Legislature can make a provision in the Statute itself for termination of the mining leases without observance or principles of natural justice. It did not choose to do so. When the Act assures the Lessee the right to carry on mining operations during the entire period of lease and provides for termination only after giving a hearing, the delegate cannot, while making a rule in exercise of the power granted under the Act, make a provision for termination of all leases relating to a particular minor mineral, without giving an opportunity of hearing to the lease/permission holders. That part of Rule 38A which purports to terminate all leases forthwith, without notice or hearing to the lessees, does not conform to the object, scheme and the provisions of the Act under which it is made and therefore, invalid.If a rule is partly valid and partly invalid, the part that is valid and severable is saved. Even the part which is found to be invalid, can be read down to avoid being declared as invalid. We have already held that premature termination of existing leases, in law, can be only after granting a hearing as required under sub-section (3) of section 4A for any of the reasons mentioned in section 4A(1) or (2). Therefore, let us examine whether we can save the offending part of Rule 38A (which terminates quarrying leases/permissions forthwith) by reading it down. Apart from the statutory provision for termination in section 4A(3), there is a contractual provision for termination in the mining leases granted by the State Government. This provision enables either party to terminate the lease by six months notice. No cause need be shown for such termination nor such termination entails payment of compensation or other penal consequences. In this case, after considering the High Level Committee Report, the State has taken a decision that all quarrying by private agencies in pursuance of the quarrying leases granted in regard government lands or permissions granted in respect of ryotwari land should be terminated in public interest. If Rule 38A is read down as terminating all mining leases granted by the government by six months notice (in terms of clause 11 in the lease deeds based on the model form at Appendix 1 to the Rules) or for the remainder period of the lease whichever is less, it can be saved, as it will then terminate the leases after notice, in terms of the lease.It is not the case of the State that all the leaseholders have violated the terms of the lease or acted in a manner detrimental to environment. Learned counsel appearing for the State, in fact, fairly admitted that several leaseholders had carried on quarrying activities without violating the terms of lease and without causing environmental degradation. If any leaseholder had acted or acts in a manner likely to result in environmental degradation etc., it is always open to the State Government to terminate the lease after giving a hearing, as provided in section 4A(3).25. Section 4A(3) requires the grant of an opportunity of hearing only for premature termination of mining leases (and prospective licences with which we are not concerned). If anyone was carrying on quarrying of sand as on 2.10.2003 in whatsoever circumstances other than in pursuance of mining leases, there is no question of hearing them before stopping quarrying activities in pursuance of Rule 38A, as hearing is required only in regard to those holding subsisting leases. Therefore, all quarrying permits for sand stood terminated with effect from 2.10.2003. All quarrying by any person, other than those holding mining leases also ceased with effect from 2.10.2003.26. In regard to mining leases subsisting as on 2.10.2003, we have read down Rule 38A as terminating such leases in terms of the contract (lease deeds) by six months, without assigning cause and without any liability to pay compensation. Such of those writ petitioners (Respondents herein) whose leases were subsisting on 2.10.2003 (and whose activities were stopped with effect from that day) will be entitled to carry on the quarrying activities for a period of six months or for the actual unexpired period of the lease (as on 2.10.2003), whichever is less. This benefit will be available to even those who have orders of court for grant of mining leases, but where mining leases were not executed for one reason or the other. It is, however, made clear that the State Government is at liberty to prematurely terminate the leases for any of the causes mentioned in section 4A(2), by giving a notice and hearing under Section 4A(3), if they want to terminate any lease within the said period of six months.
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Commissioner of Income Tax, Kerala Vs. Thayaballi Mulla Jeevaji Kapasi (Decd.) (By His Legal Representatives) | clear from his reports, made inquiries on March 18, 1954, and March 25, 1954, about the presence of the respondent in Calicut. The process-server was informed on the first occasion that the respondent was in Bombay and that it was expected that he would return to Calicut within a week. On the second occasion also it was found that the respondent was not in Calicut and the process-server was informed that the respondent was " in Bombay or in Ceylon ". The Income-tax Officer was apparently satisfied on a sworn statement made before him about the correctness of the recitals made in the endorsement made by the process-server and he declared the summons duly servedThat attempts were made to personally serve the respondent with the notice cannot, on the materials placed before the court, be denied. Whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. The respondent was on March 25, 1954, not in Calicut. That is not denied. The only information which the process-server received on March 25, 1954, was that the respondent was " in Bombay or in Ceylon ". It was thereafter that the process-server affixed the notice on the business premises of the respondent. Thereby, prima facie, the statutory requirements were satisfied7. The Tribunal has observed in its order that counsel for the respondent had stated that he gave the Bombay address of the respondent on March 8, 1954. Evidently, this statement was never made before the Income-tax Officer or the Appellate Assistant Commissioner, and no record appears to have been maintained of the statement. Again the statement is obscure : it is not stated whether it was made orally or in writing and even it does not state whether it was made to or given to the Income-tax Officer. Counsel for the respondent suggested that the date, March 8, 1954, was incorrectly recorded, it should be March 18, 1954, and that presumably it was the process-server who was informed about the " Bombay address " of the respondent. If the Tribunal desired to rely upon that statement, it should have formally called upon counsel for the respondent to record the statement in writing so as to enable the Income-tax Officer to meet that case. Counsel for the respondent urged that in any event the Income-tax Officer was otherwise aware of the place of residence of the respondent in Bombay, but of that there is no evidence8. Counsel for the respondent contended that in failing to follow up the information that the respondent was " in Bombay or in Ceylon " the Income-tax Officer was guilty of negligence, and, therefore, service by affixing cannot be regarded as duly made. Counsel relied upon the decision of the Madras High Court in Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi, and the decision of the Calcutta High Court in Gopi Ram Agarwalla v. First Income-tax Officer. In Myitkyina Trading Depots case, an unregistered firm which had its business mainly in Rangoon and had a branch office in Madras was assessed for the assessment year 1939-40. Proceedings for reassessment were commenced against the firm after the partners had left for Burma and notice was served after the business was closed by affixing it on the house in which the respective wives of the partners resided, and proceedings for reassessment were completed ex parte. Assessments for the subsequent years 1940-41 and 1941-42 were also completed in their absence. On these facts the Madras High Court held that there was no proper or due service of the notice under section 34 on the assessee and the substituted service by affixing did not constitute due service. The court pointed out that at the material time the two partners of the respondent-firm were resident in a country occupied by Japan which was at war with India and postal communications between India and Burma were severed. In the circumstances, the court held that service by affixing the notice at the known residence of the partners, where their respective wives resided, could not be regarded as due service. In Gopi Ram Agarwallas case, it was held that the mere fact that the " serving officer did not find the party to be served with the notice at his address " is not sufficient to establish that he cannot be found. It must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. If after such reasonable attempts the position still was that the party is not found, then and then only can it be said that he cannot be found. The principle laid down in that case is unexceptionable, but it has, in our judgment, no application in this caseIn the present case attempts were made to serve the notice upon the respondent at his place of business. He was not then in Calicut. No definite information could be secured in spite of inquiries as to the whereabouts of the respondent, and only thereafter, the notice was served by affixing. The Income-tax Officer held the necessary inquiry and declared the notice duly served. In the circumstances, we do not think that there was any irregularity in the service of the notice under Order V, rule 17, of the Code of Civil Procedure, read with section 63 of the Income-tax Act9. Counsel for the respondent said that before the Income-tax Officer a request was made that the two persons in whose presence the notice was affixed may be examined, but the Income-tax Officer did not examine them. That, however, cannot, in our judgment, affect the validity of the service10. The answer recorded by the High Court to the question submitted by the Tribunal will be discharged and an answer in the affirmative will be recorded | 1[ds]The notice was, it appears, handed over to a person who, thebelieved, was the son of the respondent. But the service of that notice was defective, and the notice was cancelled. The second notice dated March 24, 1954, was affixed on a conspicuous part of the business premises of the respondent and themade the requisite endorsement. Before theOfficer a sworn statement of thewas recorded and theOfficer declared the service valid6. The Tribunal and the High Court regarded the service as improper. In our view the Tribunal and the High Court were in error in so holding. It is true that Order V, rule 17, of the Code of Civil Procedure, prescribes certain conditions on the existence of which alone a summons served by affixing it to the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain may be deemed to be duly served. There is no dispute in the present case that the notice was affixed on a conspicuous part of the business premises of the respondent. Thehad, it is clear from his reports, made inquiries on March 18, 1954, and March 25, 1954, about the presence of the respondent in Calicut. Thewas informed on the first occasion that the respondent was in Bombay and that it was expected that he would return to Calicut within a week. On the second occasion also it was found that the respondent was not in Calicut and thewas informed that the respondent was " in Bombay or in Ceylon ". TheOfficer was apparently satisfied on a sworn statement made before him about the correctness of the recitals made in the endorsement made by theand he declared the summons duly servedThat attempts were made to personally serve the respondent with the notice cannot, on the materials placed before the court, be denied. Whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. The respondent was on March 25, 1954, not in Calicut. That is not denied. The only information which thereceived on March 25, 1954, was that the respondent was " in Bombay or in Ceylon ". It was thereafter that theaffixed the notice on the business premises of the respondent. Thereby, prima facie, the statutory requirements wereThe principle laid down in that case is unexceptionable, but it has, in our judgment, no application in this caseIn the present case attempts were made to serve the notice upon the respondent at his place of business. He was not then in Calicut. No definite information could be secured in spite of inquiries as to the whereabouts of the respondent, and only thereafter, the notice was served by affixing. TheOfficer held the necessary inquiry and declared the notice duly served. In the circumstances, we do not think that there was any irregularity in the service of the notice under Order V, rule 17, of the Code of Civil Procedure, read with section 63 of the, however, cannot, in our judgment, affect the validity of the service10. The answer recorded by the High Court to the question submitted by the Tribunal will be discharged and an answer in the affirmative will be recorded | 1 | 3,153 | 611 | ### 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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clear from his reports, made inquiries on March 18, 1954, and March 25, 1954, about the presence of the respondent in Calicut. The process-server was informed on the first occasion that the respondent was in Bombay and that it was expected that he would return to Calicut within a week. On the second occasion also it was found that the respondent was not in Calicut and the process-server was informed that the respondent was " in Bombay or in Ceylon ". The Income-tax Officer was apparently satisfied on a sworn statement made before him about the correctness of the recitals made in the endorsement made by the process-server and he declared the summons duly servedThat attempts were made to personally serve the respondent with the notice cannot, on the materials placed before the court, be denied. Whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. The respondent was on March 25, 1954, not in Calicut. That is not denied. The only information which the process-server received on March 25, 1954, was that the respondent was " in Bombay or in Ceylon ". It was thereafter that the process-server affixed the notice on the business premises of the respondent. Thereby, prima facie, the statutory requirements were satisfied7. The Tribunal has observed in its order that counsel for the respondent had stated that he gave the Bombay address of the respondent on March 8, 1954. Evidently, this statement was never made before the Income-tax Officer or the Appellate Assistant Commissioner, and no record appears to have been maintained of the statement. Again the statement is obscure : it is not stated whether it was made orally or in writing and even it does not state whether it was made to or given to the Income-tax Officer. Counsel for the respondent suggested that the date, March 8, 1954, was incorrectly recorded, it should be March 18, 1954, and that presumably it was the process-server who was informed about the " Bombay address " of the respondent. If the Tribunal desired to rely upon that statement, it should have formally called upon counsel for the respondent to record the statement in writing so as to enable the Income-tax Officer to meet that case. Counsel for the respondent urged that in any event the Income-tax Officer was otherwise aware of the place of residence of the respondent in Bombay, but of that there is no evidence8. Counsel for the respondent contended that in failing to follow up the information that the respondent was " in Bombay or in Ceylon " the Income-tax Officer was guilty of negligence, and, therefore, service by affixing cannot be regarded as duly made. Counsel relied upon the decision of the Madras High Court in Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi, and the decision of the Calcutta High Court in Gopi Ram Agarwalla v. First Income-tax Officer. In Myitkyina Trading Depots case, an unregistered firm which had its business mainly in Rangoon and had a branch office in Madras was assessed for the assessment year 1939-40. Proceedings for reassessment were commenced against the firm after the partners had left for Burma and notice was served after the business was closed by affixing it on the house in which the respective wives of the partners resided, and proceedings for reassessment were completed ex parte. Assessments for the subsequent years 1940-41 and 1941-42 were also completed in their absence. On these facts the Madras High Court held that there was no proper or due service of the notice under section 34 on the assessee and the substituted service by affixing did not constitute due service. The court pointed out that at the material time the two partners of the respondent-firm were resident in a country occupied by Japan which was at war with India and postal communications between India and Burma were severed. In the circumstances, the court held that service by affixing the notice at the known residence of the partners, where their respective wives resided, could not be regarded as due service. In Gopi Ram Agarwallas case, it was held that the mere fact that the " serving officer did not find the party to be served with the notice at his address " is not sufficient to establish that he cannot be found. It must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. If after such reasonable attempts the position still was that the party is not found, then and then only can it be said that he cannot be found. The principle laid down in that case is unexceptionable, but it has, in our judgment, no application in this caseIn the present case attempts were made to serve the notice upon the respondent at his place of business. He was not then in Calicut. No definite information could be secured in spite of inquiries as to the whereabouts of the respondent, and only thereafter, the notice was served by affixing. The Income-tax Officer held the necessary inquiry and declared the notice duly served. In the circumstances, we do not think that there was any irregularity in the service of the notice under Order V, rule 17, of the Code of Civil Procedure, read with section 63 of the Income-tax Act9. Counsel for the respondent said that before the Income-tax Officer a request was made that the two persons in whose presence the notice was affixed may be examined, but the Income-tax Officer did not examine them. That, however, cannot, in our judgment, affect the validity of the service10. The answer recorded by the High Court to the question submitted by the Tribunal will be discharged and an answer in the affirmative will be recorded
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The notice was, it appears, handed over to a person who, thebelieved, was the son of the respondent. But the service of that notice was defective, and the notice was cancelled. The second notice dated March 24, 1954, was affixed on a conspicuous part of the business premises of the respondent and themade the requisite endorsement. Before theOfficer a sworn statement of thewas recorded and theOfficer declared the service valid6. The Tribunal and the High Court regarded the service as improper. In our view the Tribunal and the High Court were in error in so holding. It is true that Order V, rule 17, of the Code of Civil Procedure, prescribes certain conditions on the existence of which alone a summons served by affixing it to the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain may be deemed to be duly served. There is no dispute in the present case that the notice was affixed on a conspicuous part of the business premises of the respondent. Thehad, it is clear from his reports, made inquiries on March 18, 1954, and March 25, 1954, about the presence of the respondent in Calicut. Thewas informed on the first occasion that the respondent was in Bombay and that it was expected that he would return to Calicut within a week. On the second occasion also it was found that the respondent was not in Calicut and thewas informed that the respondent was " in Bombay or in Ceylon ". TheOfficer was apparently satisfied on a sworn statement made before him about the correctness of the recitals made in the endorsement made by theand he declared the summons duly servedThat attempts were made to personally serve the respondent with the notice cannot, on the materials placed before the court, be denied. Whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. The respondent was on March 25, 1954, not in Calicut. That is not denied. The only information which thereceived on March 25, 1954, was that the respondent was " in Bombay or in Ceylon ". It was thereafter that theaffixed the notice on the business premises of the respondent. Thereby, prima facie, the statutory requirements wereThe principle laid down in that case is unexceptionable, but it has, in our judgment, no application in this caseIn the present case attempts were made to serve the notice upon the respondent at his place of business. He was not then in Calicut. No definite information could be secured in spite of inquiries as to the whereabouts of the respondent, and only thereafter, the notice was served by affixing. TheOfficer held the necessary inquiry and declared the notice duly served. In the circumstances, we do not think that there was any irregularity in the service of the notice under Order V, rule 17, of the Code of Civil Procedure, read with section 63 of the, however, cannot, in our judgment, affect the validity of the service10. The answer recorded by the High Court to the question submitted by the Tribunal will be discharged and an answer in the affirmative will be recorded
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M/S.Sharma & Associates Contractors (P)Ltd Vs. Progressive Constructions Ltd | 1967 SC 1032 : (1967) 1 SCR 324 ] to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties." (iii) Indu Engineering & Textiles Ltd. v. Delhi Development Authority, 2001(3) R.C.R.(Civil) 770 : (2001) 5 SCC 691. "5. The scope for interference by the court with an award passed by the arbitrator is limited. Section 30 of the Arbitration Act, 1940 (for short "the Act") provides in somewhat mandatory terms that an award shall not be set aside except on one or more of the grounds enumerated in the provision... xxx xxx xxx 7. This Court, while dealing with the power of courts to interfere with an award passed by an arbitrator, had consistently laid stress on the position that an arbitrator is a Judge appointed by the parties and as such the award passed by him is not to be lightly interfered with... 8. As noted earlier, the Division Bench in appeal filed under Section 39 of the Act, reversed the order passed by the Single Judge and set aside the award holding that there was no material before the arbitrator for accepting the claim of the appellant. The Division Bench exceeded the limits of its jurisdiction in entering into the facts of the case and in interpreting the agreement between the parties and correspondence which was a part of the said agreement. What was the price of the commodity to be paid by the respondent to the appellant was essentially a question of fact. Even assuming that the arbitrator had committed an error in coming to the conclusion that the appellant was entitled to the claim of the escalated price of the commodity (hard coke) under the terms of the agreement and the Division Bench felt that the conclusion should have been otherwise, it was not open to it to interfere with the award on that score..." 10. There is no quarrel about the principle of law mentioned in the aforesaid judgments. However, when it is found that claim was entertained by the learned arbitrator on the basis of provisions in the contract entered into between HSCL and the respondent and said provisions were not made applicable in the contract which was entered into between the appellant and the respondent, the approach of the learned arbitrator is clearly perverse in justifying the claim on the basis of provisions which were not even applicable. Whether contract entered into between the HSCL and the respondent governed the relationship between the appellant and the respondent was a fundamental and jurisdictional issue and such an exercise is permissible by the Court while examining the validity of an award. Undertaking this exercise did not amount to appraising the evidence or dealing with the matter as an appellate court. On the contrary, the approach taken by the Division Bench of the High Court is on the principle that arbitrator is a creature of contract between the parties and if he ignores the specific term of the contract, it would be a question of jurisdictional error which can be corrected by the Court. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part, but it may tantamount to legal malafide as well. It is further settled in law that arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable. This is so held in Food Corporation of India v. Chandu Construction & Anr., 2007(2) R.C.R.(Civil) 744 : (2007) 4 SCC 697 in the following manner: "19. ...Having accepted the terms of the agreement dated 19-9-1984, they were bound by its terms and so was the arbitrator. It is, thus, clear that the claim awarded by the arbitrator is contrary to the unambiguous terms of the contract. We are of the view that the arbitrator was not justified in ignoring the express terms of the contract merely on the ground that in another contract for a similar work, extra payment for material was provided for. It was not open to the arbitrator to travel beyond the terms of the contract even if he was convinced that the rate quoted by the claimants was low and another contractor, namely, M/s Gupta and Company had been separately paid for the material. The claimants claim had to be adjudicated by the specific terms of their agreement with FCI and no other." 11. To the same effect is the judgment in the case of Rajasthan State Mines and Minerals Ltd. v. Eastern Engineering Enterprises & Anr., (1999) 9 SCC 283. 12. We are conscious of the fact that though the respondent has been able to get the benefit of enhanced rate in respect of Item Nos.1 and 6 and is able to retain the same thereby depriving the appellant to get this benefit. However, in a matter of contract where the parties have to stick to govern by the provisions of the contract entered into between them, equity has no role to play. Insofar as contract between the appellant and respondent is concerned, appellant was satisfied with "escalation" clause. Respondent, while entering into contract with HSCL ensured that enhancement of rates by the principal employer i.e. NHPC in favour of HSCL will enure to the benefit of the respondent PCL as well. The appellant, however, could not successfully negotiate this aspect with the respondent in the absence of any such clause/arrangement in the contract entered into between the appellant and the respondent. As the contract between appellant and respondent deals only with escalation, appellant has to be satisfied with the same. | 0[ds]7. It is not in dispute that insofar as contract between NHPC and HSCL is concerned, which is the main contract, it permits sub-contracting of the work by HSCL with the consent of NHPC. It is on that basis sub-contract was signed between HSCL and the respondent. This contract is back to back as Clauses 1.2 and 9 thereof clearly show that terms of main contract to the extent they were sensible stood explicitly incorporated in the contract that was entered into between HSCL and the respondent. However, we are not concerned with the dispute between HSCL and the respondent. As pointed out above, further sub-contract is signed between the respondent and the appellant.The High Court in the impugned judgment has answered the aforesaid question in the negative, and rightly so. As noted above, contract executed between HSCL and the respondent was proceeded by correspondent exchange between the said parties. There was a clear understanding between them that in case HSCL is able to get extra payment in respect of item Nos.1 and 2, HSCL had to pass on the said benefit to the respondent after retaining 5% of the enhanced amount so received. However, there was no such stipulation in the contract entered into between the appellant and thewe do not find it to be so. Since that was the basis on which the learned arbitrator awarded the claim, the High Court has rightly held that it is a fundamental error committed by the arbitrator. On the other hand, what emerges from the contract between the appellant and the respondent is that the appellant could claim revised rates based only on escalation as per the provisions of Clause 16. Under this head, appellant was entitled to a sum of Rs. 7,17,560/-.There is no quarrel about the principle of law mentioned in the aforesaid judgments. However, when it is found that claim was entertained by the learned arbitrator on the basis of provisions in the contract entered into between HSCL and the respondent and said provisions were not made applicable in the contract which was entered into between the appellant and the respondent, the approach of the learned arbitrator is clearly perverse in justifying the claim on the basis of provisions which were not even applicable. Whether contract entered into between the HSCL and the respondent governed the relationship between the appellant and the respondent was a fundamental and jurisdictional issue and such an exercise is permissible by the Court while examining the validity of an award. Undertaking this exercise did not amount to appraising the evidence or dealing with the matter as an appellate court. On the contrary, the approach taken by the Division Bench of the High Court is on the principle that arbitrator is a creature of contract between the parties and if he ignores the specific term of the contract, it would be a question of jurisdictional error which can be corrected by the Court. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part, but it may tantamount to legal malafide as well. It is further settled in law that arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable.To the same effect is the judgment in the case of Rajasthan State Mines and Minerals Ltd. v. Eastern Engineering Enterprises & Anr., (1999) 9 SCC 283. We are conscious of the fact that though the respondent has been able to get the benefit of enhanced rate in respect of Item Nos.1 and 6 and is able to retain the same thereby depriving the appellant to get this benefit. However, in a matter of contract where the parties have to stick to govern by the provisions of the contract entered into between them, equity has no role to play. Insofar as contract between the appellant and respondent is concerned, appellant was satisfied with "escalation" clause. Respondent, while entering into contract with HSCL ensured that enhancement of rates by the principal employer i.e. NHPC in favour of HSCL will enure to the benefit of the respondent PCL as well. The appellant, however, could not successfully negotiate this aspect with the respondent in the absence of any such clause/arrangement in the contract entered into between the appellant and the respondent. As the contract between appellant and respondent deals only with escalation, appellant has to be satisfied with the same. | 0 | 4,413 | 806 | ### 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:
1967 SC 1032 : (1967) 1 SCR 324 ] to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties." (iii) Indu Engineering & Textiles Ltd. v. Delhi Development Authority, 2001(3) R.C.R.(Civil) 770 : (2001) 5 SCC 691. "5. The scope for interference by the court with an award passed by the arbitrator is limited. Section 30 of the Arbitration Act, 1940 (for short "the Act") provides in somewhat mandatory terms that an award shall not be set aside except on one or more of the grounds enumerated in the provision... xxx xxx xxx 7. This Court, while dealing with the power of courts to interfere with an award passed by an arbitrator, had consistently laid stress on the position that an arbitrator is a Judge appointed by the parties and as such the award passed by him is not to be lightly interfered with... 8. As noted earlier, the Division Bench in appeal filed under Section 39 of the Act, reversed the order passed by the Single Judge and set aside the award holding that there was no material before the arbitrator for accepting the claim of the appellant. The Division Bench exceeded the limits of its jurisdiction in entering into the facts of the case and in interpreting the agreement between the parties and correspondence which was a part of the said agreement. What was the price of the commodity to be paid by the respondent to the appellant was essentially a question of fact. Even assuming that the arbitrator had committed an error in coming to the conclusion that the appellant was entitled to the claim of the escalated price of the commodity (hard coke) under the terms of the agreement and the Division Bench felt that the conclusion should have been otherwise, it was not open to it to interfere with the award on that score..." 10. There is no quarrel about the principle of law mentioned in the aforesaid judgments. However, when it is found that claim was entertained by the learned arbitrator on the basis of provisions in the contract entered into between HSCL and the respondent and said provisions were not made applicable in the contract which was entered into between the appellant and the respondent, the approach of the learned arbitrator is clearly perverse in justifying the claim on the basis of provisions which were not even applicable. Whether contract entered into between the HSCL and the respondent governed the relationship between the appellant and the respondent was a fundamental and jurisdictional issue and such an exercise is permissible by the Court while examining the validity of an award. Undertaking this exercise did not amount to appraising the evidence or dealing with the matter as an appellate court. On the contrary, the approach taken by the Division Bench of the High Court is on the principle that arbitrator is a creature of contract between the parties and if he ignores the specific term of the contract, it would be a question of jurisdictional error which can be corrected by the Court. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part, but it may tantamount to legal malafide as well. It is further settled in law that arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable. This is so held in Food Corporation of India v. Chandu Construction & Anr., 2007(2) R.C.R.(Civil) 744 : (2007) 4 SCC 697 in the following manner: "19. ...Having accepted the terms of the agreement dated 19-9-1984, they were bound by its terms and so was the arbitrator. It is, thus, clear that the claim awarded by the arbitrator is contrary to the unambiguous terms of the contract. We are of the view that the arbitrator was not justified in ignoring the express terms of the contract merely on the ground that in another contract for a similar work, extra payment for material was provided for. It was not open to the arbitrator to travel beyond the terms of the contract even if he was convinced that the rate quoted by the claimants was low and another contractor, namely, M/s Gupta and Company had been separately paid for the material. The claimants claim had to be adjudicated by the specific terms of their agreement with FCI and no other." 11. To the same effect is the judgment in the case of Rajasthan State Mines and Minerals Ltd. v. Eastern Engineering Enterprises & Anr., (1999) 9 SCC 283. 12. We are conscious of the fact that though the respondent has been able to get the benefit of enhanced rate in respect of Item Nos.1 and 6 and is able to retain the same thereby depriving the appellant to get this benefit. However, in a matter of contract where the parties have to stick to govern by the provisions of the contract entered into between them, equity has no role to play. Insofar as contract between the appellant and respondent is concerned, appellant was satisfied with "escalation" clause. Respondent, while entering into contract with HSCL ensured that enhancement of rates by the principal employer i.e. NHPC in favour of HSCL will enure to the benefit of the respondent PCL as well. The appellant, however, could not successfully negotiate this aspect with the respondent in the absence of any such clause/arrangement in the contract entered into between the appellant and the respondent. As the contract between appellant and respondent deals only with escalation, appellant has to be satisfied with the same.
### Response:
0
### Explanation:
7. It is not in dispute that insofar as contract between NHPC and HSCL is concerned, which is the main contract, it permits sub-contracting of the work by HSCL with the consent of NHPC. It is on that basis sub-contract was signed between HSCL and the respondent. This contract is back to back as Clauses 1.2 and 9 thereof clearly show that terms of main contract to the extent they were sensible stood explicitly incorporated in the contract that was entered into between HSCL and the respondent. However, we are not concerned with the dispute between HSCL and the respondent. As pointed out above, further sub-contract is signed between the respondent and the appellant.The High Court in the impugned judgment has answered the aforesaid question in the negative, and rightly so. As noted above, contract executed between HSCL and the respondent was proceeded by correspondent exchange between the said parties. There was a clear understanding between them that in case HSCL is able to get extra payment in respect of item Nos.1 and 2, HSCL had to pass on the said benefit to the respondent after retaining 5% of the enhanced amount so received. However, there was no such stipulation in the contract entered into between the appellant and thewe do not find it to be so. Since that was the basis on which the learned arbitrator awarded the claim, the High Court has rightly held that it is a fundamental error committed by the arbitrator. On the other hand, what emerges from the contract between the appellant and the respondent is that the appellant could claim revised rates based only on escalation as per the provisions of Clause 16. Under this head, appellant was entitled to a sum of Rs. 7,17,560/-.There is no quarrel about the principle of law mentioned in the aforesaid judgments. However, when it is found that claim was entertained by the learned arbitrator on the basis of provisions in the contract entered into between HSCL and the respondent and said provisions were not made applicable in the contract which was entered into between the appellant and the respondent, the approach of the learned arbitrator is clearly perverse in justifying the claim on the basis of provisions which were not even applicable. Whether contract entered into between the HSCL and the respondent governed the relationship between the appellant and the respondent was a fundamental and jurisdictional issue and such an exercise is permissible by the Court while examining the validity of an award. Undertaking this exercise did not amount to appraising the evidence or dealing with the matter as an appellate court. On the contrary, the approach taken by the Division Bench of the High Court is on the principle that arbitrator is a creature of contract between the parties and if he ignores the specific term of the contract, it would be a question of jurisdictional error which can be corrected by the Court. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part, but it may tantamount to legal malafide as well. It is further settled in law that arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable.To the same effect is the judgment in the case of Rajasthan State Mines and Minerals Ltd. v. Eastern Engineering Enterprises & Anr., (1999) 9 SCC 283. We are conscious of the fact that though the respondent has been able to get the benefit of enhanced rate in respect of Item Nos.1 and 6 and is able to retain the same thereby depriving the appellant to get this benefit. However, in a matter of contract where the parties have to stick to govern by the provisions of the contract entered into between them, equity has no role to play. Insofar as contract between the appellant and respondent is concerned, appellant was satisfied with "escalation" clause. Respondent, while entering into contract with HSCL ensured that enhancement of rates by the principal employer i.e. NHPC in favour of HSCL will enure to the benefit of the respondent PCL as well. The appellant, however, could not successfully negotiate this aspect with the respondent in the absence of any such clause/arrangement in the contract entered into between the appellant and the respondent. As the contract between appellant and respondent deals only with escalation, appellant has to be satisfied with the same.
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Meenakshi Mills, Madurai Vs. The Commissioner Of Income-Tax,Madras | and not of income not accrued or arisen.This is conceded by the appellant. But it is argued that different considerations arise in the case of companies registered under the Indian Companies Act, because there are provisions in the Act as to how the profits are to be disposed of, such as distribution of dividends or adding to the reserve and until that was done, there was no accrual of income or of profits under the statute.This is to confuse accrual of income with the disposal of it. Income which has accrued to an assessee might remain undisposed of by him, but the liability to tax attaches to it under the provisions of the Indian Income-tax Act as soon as it accrues. It is no concern of the revenue how and when profits are disposed of by the assesses, and for this purpose it makes no difference whether the assessee is an individual or a company, both of them being equally liable to tax on income and profits when they have arisen or accrued. The provisions of the Companies Act as to the disposal, of profits are designed to protect the interests of the shareholders and have no effect on the right which the State has under the provisions of the Act to impose a tax on income when it arises or accrues.It should also be mentioned that though the decision in 1954 S C R 258: (AIR 1953 S C 527) (Z9) relates to a firm and not a company, the decisions in 1924 A C 508 (Z6) and 1914 AC 1001 (Z7) which were held to be inapplicable to the imposition of a charge under the Indian Income-tax Act related to companies, and the argument and the decision proceeded on the footing that the principles applicable were the same both to firms and companies. The decision in 1954 S C R 258: (AIR 1953 S C 527) (Z9) must accordingly be held to conclude this question against the appellant.36. It must be said of this contention that it was raised before the Tribunal and negatived. Being a question of law, the appellant had a right to have it referred to the court under section 66 (1). But the question as framed by the appellant in its application under section 66 (1) did not specifically raise this point; nor does it appear to have been argued in the High Court. As the matter is now concluded by the authority, it will be an idle formality to direct the tribunal to refer the question for the decision of the court. The powers of this Court in appeal under Article 136 are not intended to be exercised for such a purpose. That disposes of the main and substantial questions that have been agitated in these proceedings.37. There is one other matter in respect of which the appellant sought reference to the court in its application under section 66 (1). The facts relating to this matter are that during the periods of assessment with which the appeals are concerned, the appellant opened branches in the State of Travancore, Cochin, Pudukkottah and Mysore, and sold yarn to its constituents in those States through these branches. The point in dispute is whether the profits made by the appellant on those sales are chargeable to tax. The contention of the appellant before the Tribunal was that the matter was governed by section 14(2)(c), and that the profits could be taxed only if they were remitted to British India. That was not disputed by the Department, but they contended that as the appellant sold in the States goods manufactured by it in British India, the governing provisions were sections 42(1) and 42(3), and that under these provisions, the appellant was liable to be taxed on such portions of the profits as were apportionable to the manufacture of the goods in British India. That was accepted by the Tribunal, and the profits were apportioned in the ratio of 85:15. In its application under section 66 (1), the appellant raised the contention that sections 42 (1) and 42 (3) applied only to non-residents, and that it was only section 14 (2) (c) that would apply to residents and applied to have that question referred to the decision of the court. But the Tribunal held that the decision of this Court inCommissioner of Income-tax v. Ahmedbhai Umarbhai and Co.,1950 S C R 335: (AIR 1950 S C 134) (Z10) had settled that sections 42 (1) and 42 (3) applied both to residents as well as non-residents and consequently declined to refer the question.38. The correctness of this decision does not appear to have been contested before the High Court, the only point dealt with in the judgement of the learned judges being as to the correctness of the ratio in which the apportionment was made. Even in this Court, it was only this question that was pressed on the strength of the decision inCommissioner of Income-tax and Excess Profits Tax and B. and O. v. S. Sen,1949-17 ITR 355 : (AIR 1952 Orissa 89) (Z 11). Section 14 was mentioned in the course of the argument, but no contention was advanced that sections 42 (1) and 42 (3) applied only to non-residents, and the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), was not even so much as referred to in the course of the argument, and the appellant did not even ask for this question being referred. That apart, in view of the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), no purpose would be served by directing a reference of this question, and the Tribunal was right in observing that "it is not even of academic interest to refer the said question to the High Court". On the question whether the fixation of ratio was correct, we are of opinion that it is a pure question of fact, and is not open to reference under section 66 (1). | 0[ds]25. Applying these principles, admittedly there is no question here of construction of any statutory provision or document of title. The issues which arise for determination whether the sales entered in the books of the appellant in the names of the intermediaries were genuine and if not, to whom the goods were sold and for what price are all questions of fact. Their determination does not involve the application of legal principles to facts established in the evidence. The findings of the Tribunal are amply supported by evidence and are eminently reasonable. It should, therefore, follow that there is no question which could be referred to the Court under S.66 (1).It must be said of this contention that it was raised before the Tribunal and negatived. Being a question of law, the appellant had a right to have it referred to the court under section 66 (1). But the question as framed by the appellant in its application under section 66 (1) did not specifically raise this point; nor does it appear to have been argued in the High Court. As the matter is now concluded by the authority, it will be an idle formality to direct the tribunal to refer the question for the decision of the court. The powers of this Court in appeal under Article 136 are not intended to be exercised for such a purpose. That disposes of the main and substantial questions that have been agitated in these proceedings.37. There is one other matter in respect of which the appellant sought reference to the court in its application under section 66 (1). The facts relating to this matter are that during the periods of assessment with which the appeals are concerned, the appellant opened branches in the State of Travancore, Cochin, Pudukkottah and Mysore, and sold yarn to its constituents in those States through these branches. The point in dispute is whether the profits made by the appellant on those sales are chargeable to tax. The contention of the appellant before the Tribunal was that the matter was governed by section 14(2)(c), and that the profits could be taxed only if they were remitted to British India. That was not disputed by the Department, but they contended that as the appellant sold in the States goods manufactured by it in British India, the governing provisions were sections 42(1) and 42(3), and that under these provisions, the appellant was liable to be taxed on such portions of the profits as were apportionable to the manufacture of the goods in British India. That was accepted by the Tribunal, and the profits were apportioned in the ratio of 85:15. In its application under section 66 (1), the appellant raised the contention that sections 42 (1) and 42 (3) applied only to non-residents, and that it was only section 14 (2) (c) that would apply to residents and applied to have that question referred to the decision of the court. But the Tribunal held that the decision of this Court inCommissioner of Income-tax v. Ahmedbhai Umarbhai and Co.,1950 S C R 335: (AIR 1950 S C 134) (Z10) had settled that sections 42 (1) and 42 (3) applied both to residents as well as non-residents and consequently declined to refer the question.The correctness of this decision does not appear to have been contested before the High Court, the only point dealt with in the judgement of the learned judges being as to the correctness of the ratio in which the apportionment was made. Even in this Court, it was only this question that was pressed on the strength of the decision inCommissioner of Income-tax and Excess Profits Tax and B. and O. v. S. Sen,1949-17 ITR 355 : (AIR 1952 Orissa 89) (Z 11). Section 14 was mentioned in the course of the argument, but no contention was advanced that sections 42 (1) and 42 (3) applied only to non-residents, and the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), was not even so much as referred to in the course of the argument, and the appellant did not even ask for this question being referred. That apart, in view of the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), no purpose would be served by directing a reference of this question, and the Tribunal was right in observing that "it is not even of academic interest to refer the said question to the High Court". On the question whether the fixation of ratio was correct, we are of opinion that it is a pure question of fact, and is not open to reference under section 66 (1). | 0 | 16,087 | 898 | ### 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:
and not of income not accrued or arisen.This is conceded by the appellant. But it is argued that different considerations arise in the case of companies registered under the Indian Companies Act, because there are provisions in the Act as to how the profits are to be disposed of, such as distribution of dividends or adding to the reserve and until that was done, there was no accrual of income or of profits under the statute.This is to confuse accrual of income with the disposal of it. Income which has accrued to an assessee might remain undisposed of by him, but the liability to tax attaches to it under the provisions of the Indian Income-tax Act as soon as it accrues. It is no concern of the revenue how and when profits are disposed of by the assesses, and for this purpose it makes no difference whether the assessee is an individual or a company, both of them being equally liable to tax on income and profits when they have arisen or accrued. The provisions of the Companies Act as to the disposal, of profits are designed to protect the interests of the shareholders and have no effect on the right which the State has under the provisions of the Act to impose a tax on income when it arises or accrues.It should also be mentioned that though the decision in 1954 S C R 258: (AIR 1953 S C 527) (Z9) relates to a firm and not a company, the decisions in 1924 A C 508 (Z6) and 1914 AC 1001 (Z7) which were held to be inapplicable to the imposition of a charge under the Indian Income-tax Act related to companies, and the argument and the decision proceeded on the footing that the principles applicable were the same both to firms and companies. The decision in 1954 S C R 258: (AIR 1953 S C 527) (Z9) must accordingly be held to conclude this question against the appellant.36. It must be said of this contention that it was raised before the Tribunal and negatived. Being a question of law, the appellant had a right to have it referred to the court under section 66 (1). But the question as framed by the appellant in its application under section 66 (1) did not specifically raise this point; nor does it appear to have been argued in the High Court. As the matter is now concluded by the authority, it will be an idle formality to direct the tribunal to refer the question for the decision of the court. The powers of this Court in appeal under Article 136 are not intended to be exercised for such a purpose. That disposes of the main and substantial questions that have been agitated in these proceedings.37. There is one other matter in respect of which the appellant sought reference to the court in its application under section 66 (1). The facts relating to this matter are that during the periods of assessment with which the appeals are concerned, the appellant opened branches in the State of Travancore, Cochin, Pudukkottah and Mysore, and sold yarn to its constituents in those States through these branches. The point in dispute is whether the profits made by the appellant on those sales are chargeable to tax. The contention of the appellant before the Tribunal was that the matter was governed by section 14(2)(c), and that the profits could be taxed only if they were remitted to British India. That was not disputed by the Department, but they contended that as the appellant sold in the States goods manufactured by it in British India, the governing provisions were sections 42(1) and 42(3), and that under these provisions, the appellant was liable to be taxed on such portions of the profits as were apportionable to the manufacture of the goods in British India. That was accepted by the Tribunal, and the profits were apportioned in the ratio of 85:15. In its application under section 66 (1), the appellant raised the contention that sections 42 (1) and 42 (3) applied only to non-residents, and that it was only section 14 (2) (c) that would apply to residents and applied to have that question referred to the decision of the court. But the Tribunal held that the decision of this Court inCommissioner of Income-tax v. Ahmedbhai Umarbhai and Co.,1950 S C R 335: (AIR 1950 S C 134) (Z10) had settled that sections 42 (1) and 42 (3) applied both to residents as well as non-residents and consequently declined to refer the question.38. The correctness of this decision does not appear to have been contested before the High Court, the only point dealt with in the judgement of the learned judges being as to the correctness of the ratio in which the apportionment was made. Even in this Court, it was only this question that was pressed on the strength of the decision inCommissioner of Income-tax and Excess Profits Tax and B. and O. v. S. Sen,1949-17 ITR 355 : (AIR 1952 Orissa 89) (Z 11). Section 14 was mentioned in the course of the argument, but no contention was advanced that sections 42 (1) and 42 (3) applied only to non-residents, and the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), was not even so much as referred to in the course of the argument, and the appellant did not even ask for this question being referred. That apart, in view of the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), no purpose would be served by directing a reference of this question, and the Tribunal was right in observing that "it is not even of academic interest to refer the said question to the High Court". On the question whether the fixation of ratio was correct, we are of opinion that it is a pure question of fact, and is not open to reference under section 66 (1).
### Response:
0
### Explanation:
25. Applying these principles, admittedly there is no question here of construction of any statutory provision or document of title. The issues which arise for determination whether the sales entered in the books of the appellant in the names of the intermediaries were genuine and if not, to whom the goods were sold and for what price are all questions of fact. Their determination does not involve the application of legal principles to facts established in the evidence. The findings of the Tribunal are amply supported by evidence and are eminently reasonable. It should, therefore, follow that there is no question which could be referred to the Court under S.66 (1).It must be said of this contention that it was raised before the Tribunal and negatived. Being a question of law, the appellant had a right to have it referred to the court under section 66 (1). But the question as framed by the appellant in its application under section 66 (1) did not specifically raise this point; nor does it appear to have been argued in the High Court. As the matter is now concluded by the authority, it will be an idle formality to direct the tribunal to refer the question for the decision of the court. The powers of this Court in appeal under Article 136 are not intended to be exercised for such a purpose. That disposes of the main and substantial questions that have been agitated in these proceedings.37. There is one other matter in respect of which the appellant sought reference to the court in its application under section 66 (1). The facts relating to this matter are that during the periods of assessment with which the appeals are concerned, the appellant opened branches in the State of Travancore, Cochin, Pudukkottah and Mysore, and sold yarn to its constituents in those States through these branches. The point in dispute is whether the profits made by the appellant on those sales are chargeable to tax. The contention of the appellant before the Tribunal was that the matter was governed by section 14(2)(c), and that the profits could be taxed only if they were remitted to British India. That was not disputed by the Department, but they contended that as the appellant sold in the States goods manufactured by it in British India, the governing provisions were sections 42(1) and 42(3), and that under these provisions, the appellant was liable to be taxed on such portions of the profits as were apportionable to the manufacture of the goods in British India. That was accepted by the Tribunal, and the profits were apportioned in the ratio of 85:15. In its application under section 66 (1), the appellant raised the contention that sections 42 (1) and 42 (3) applied only to non-residents, and that it was only section 14 (2) (c) that would apply to residents and applied to have that question referred to the decision of the court. But the Tribunal held that the decision of this Court inCommissioner of Income-tax v. Ahmedbhai Umarbhai and Co.,1950 S C R 335: (AIR 1950 S C 134) (Z10) had settled that sections 42 (1) and 42 (3) applied both to residents as well as non-residents and consequently declined to refer the question.The correctness of this decision does not appear to have been contested before the High Court, the only point dealt with in the judgement of the learned judges being as to the correctness of the ratio in which the apportionment was made. Even in this Court, it was only this question that was pressed on the strength of the decision inCommissioner of Income-tax and Excess Profits Tax and B. and O. v. S. Sen,1949-17 ITR 355 : (AIR 1952 Orissa 89) (Z 11). Section 14 was mentioned in the course of the argument, but no contention was advanced that sections 42 (1) and 42 (3) applied only to non-residents, and the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), was not even so much as referred to in the course of the argument, and the appellant did not even ask for this question being referred. That apart, in view of the decision in 1950 S C R 335: (AIR 1950 S C 134) (Z10), no purpose would be served by directing a reference of this question, and the Tribunal was right in observing that "it is not even of academic interest to refer the said question to the High Court". On the question whether the fixation of ratio was correct, we are of opinion that it is a pure question of fact, and is not open to reference under section 66 (1).
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DEVENDER BHASKAR & ORS Vs. STATE OF HARYANA & ORS | is the eligibility in any stream. No merit determination and no age bar. 3. Reservation policy applicable. No reservation policy. 4. Limited seats i.e. 30 students consists of one unit. No limited seats. 5. Internal assessment of 160 marks. No internal assessment. 6. Regular practical classes in lab such as: - a) Wood work; b) Clay modeling; c) Painting; d) Applied Art; e) Scale Geometry; f) Design and poster; & g) Still life. No regular practical classes as the same is correspondence course. 18. It is also relevant to state here that Kurukshetra University itself has clarified that the diploma in Art and Craft started by it through correspondence is not meant for appointment to the post of Arts and Crafts Teachers. In fact, Kurukshetra University has never claimed that the aforementioned diploma is valid for appointment of Arts and Crafts Teachers. The Registrar of Kurukshetra University in a public notice dated 27.09.2004 has clarified that this degree is meant for enabling the students to become self-employed. None of the documents produced by the petitioners would indicate that the diploma in Art and Craft awarded by the Kurukshetra University is equivalent to the twoyear diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department. In its letter dated 24.12.2004, at Exhibit P-4, the Kurukshetra University has clearly stated that the University does not guarantee any specific job for any of the courses including the diploma in Art and Craft. 19. The documents, Exhibit P-2 to P-4, do not claim that the course in question has been recognized as equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. 20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the two-year diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them. 21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors (1975) 3 SCC 76 , it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong. 22. In J. Ranga Swamy v. Government of Andhra Pradesh and Others (1990) 1 SCC 288, this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts. 23. In State of Rajasthan & Ors. v. Lata Arun (2002) 6 SCC 252, this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus: 13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority. 24. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr. (2009) 1 SCC 610, this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such. 25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. (2019) 2 SCC 404 , it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. 26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, Haryana. | 1[ds]13. As noticed above, the advertisement dated 20.07.2006 was issued by the Commission inviting applications for filling up of 816 posts of Arts and Crafts teachers in the State of Haryana. One of the important eligibility criteria was a two-year diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. The writ petitioners are holders of two-year diploma in Art and Craft from the Kurukshetra University.14. The materials on record clearly suggest that the Art and Craft Course is a highly practical oriented course and the appointee teachers have to train the students in Art and Craft which is a practical subject. The diploma in Art and Craft is given by the Industrial Training and Vocational Education Department, Haryana, to the students who attend regular class room teaching. Most of the subjects are practical subjects and their study is not possible through distance education. The Kurukshetra University grants the diploma in Art and Craft through distance education. This diploma cannot be equated with the diploma given through regular class room studies. In fact, in a meeting convened by the Financial Commissioner and Principal Secretary, Industrial Training and Vocational Education Department on 27.11.2003, it was decided to ask the Kurukshetra University to discontinue the said course from the next academic sessions i.e. 2004-2005 as it was running through distance education and the same was not in the best interest of the students. The Kurukshetra University has issued a caution notice in various leading newspapers in which it was made clear that some institutions who had given misleading advertisement for Kurukshetra University course of Art and Craft as a teacher training course. It was also clarified that the diploma in Art and Craft from the Kurukshetra University does not guarantee any specific job.18. It is also relevant to state here that Kurukshetra University itself has clarified that the diploma in Art and Craft started by it through correspondence is not meant for appointment to the post of Arts and Crafts Teachers. In fact, Kurukshetra University has never claimed that the aforementioned diploma is valid for appointment of Arts and Crafts Teachers. The Registrar of Kurukshetra University in a public notice dated 27.09.2004 has clarified that this degree is meant for enabling the students to become self-employed. None of the documents produced by the petitioners would indicate that the diploma in Art and Craft awarded by the Kurukshetra University is equivalent to the twoyear diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department. In its letter dated 24.12.2004, at Exhibit P-4, the Kurukshetra University has clearly stated that the University does not guarantee any specific job for any of the courses including the diploma in Art and Craft.19. The documents, Exhibit P-2 to P-4, do not claim that the course in question has been recognized as equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department.20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the two-year diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them.21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors (1975) 3 SCC 76 , it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong.25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. (2019) 2 SCC 404 , it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine.26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, Haryana. | 1 | 3,659 | 1,040 | ### 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:
is the eligibility in any stream. No merit determination and no age bar. 3. Reservation policy applicable. No reservation policy. 4. Limited seats i.e. 30 students consists of one unit. No limited seats. 5. Internal assessment of 160 marks. No internal assessment. 6. Regular practical classes in lab such as: - a) Wood work; b) Clay modeling; c) Painting; d) Applied Art; e) Scale Geometry; f) Design and poster; & g) Still life. No regular practical classes as the same is correspondence course. 18. It is also relevant to state here that Kurukshetra University itself has clarified that the diploma in Art and Craft started by it through correspondence is not meant for appointment to the post of Arts and Crafts Teachers. In fact, Kurukshetra University has never claimed that the aforementioned diploma is valid for appointment of Arts and Crafts Teachers. The Registrar of Kurukshetra University in a public notice dated 27.09.2004 has clarified that this degree is meant for enabling the students to become self-employed. None of the documents produced by the petitioners would indicate that the diploma in Art and Craft awarded by the Kurukshetra University is equivalent to the twoyear diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department. In its letter dated 24.12.2004, at Exhibit P-4, the Kurukshetra University has clearly stated that the University does not guarantee any specific job for any of the courses including the diploma in Art and Craft. 19. The documents, Exhibit P-2 to P-4, do not claim that the course in question has been recognized as equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. 20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the two-year diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them. 21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors (1975) 3 SCC 76 , it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong. 22. In J. Ranga Swamy v. Government of Andhra Pradesh and Others (1990) 1 SCC 288, this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts. 23. In State of Rajasthan & Ors. v. Lata Arun (2002) 6 SCC 252, this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus: 13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority. 24. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr. (2009) 1 SCC 610, this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such. 25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. (2019) 2 SCC 404 , it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. 26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, Haryana.
### Response:
1
### Explanation:
13. As noticed above, the advertisement dated 20.07.2006 was issued by the Commission inviting applications for filling up of 816 posts of Arts and Crafts teachers in the State of Haryana. One of the important eligibility criteria was a two-year diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. The writ petitioners are holders of two-year diploma in Art and Craft from the Kurukshetra University.14. The materials on record clearly suggest that the Art and Craft Course is a highly practical oriented course and the appointee teachers have to train the students in Art and Craft which is a practical subject. The diploma in Art and Craft is given by the Industrial Training and Vocational Education Department, Haryana, to the students who attend regular class room teaching. Most of the subjects are practical subjects and their study is not possible through distance education. The Kurukshetra University grants the diploma in Art and Craft through distance education. This diploma cannot be equated with the diploma given through regular class room studies. In fact, in a meeting convened by the Financial Commissioner and Principal Secretary, Industrial Training and Vocational Education Department on 27.11.2003, it was decided to ask the Kurukshetra University to discontinue the said course from the next academic sessions i.e. 2004-2005 as it was running through distance education and the same was not in the best interest of the students. The Kurukshetra University has issued a caution notice in various leading newspapers in which it was made clear that some institutions who had given misleading advertisement for Kurukshetra University course of Art and Craft as a teacher training course. It was also clarified that the diploma in Art and Craft from the Kurukshetra University does not guarantee any specific job.18. It is also relevant to state here that Kurukshetra University itself has clarified that the diploma in Art and Craft started by it through correspondence is not meant for appointment to the post of Arts and Crafts Teachers. In fact, Kurukshetra University has never claimed that the aforementioned diploma is valid for appointment of Arts and Crafts Teachers. The Registrar of Kurukshetra University in a public notice dated 27.09.2004 has clarified that this degree is meant for enabling the students to become self-employed. None of the documents produced by the petitioners would indicate that the diploma in Art and Craft awarded by the Kurukshetra University is equivalent to the twoyear diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department. In its letter dated 24.12.2004, at Exhibit P-4, the Kurukshetra University has clearly stated that the University does not guarantee any specific job for any of the courses including the diploma in Art and Craft.19. The documents, Exhibit P-2 to P-4, do not claim that the course in question has been recognized as equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department.20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the two-year diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them.21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors (1975) 3 SCC 76 , it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong.25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. (2019) 2 SCC 404 , it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine.26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, Haryana.
|
B. M. Ramaswamy Vs. B. M. Krishnamurthy And Others | included in the electoral roll of the Mysore legislative Assembly before the date prescribed for filing of nomination papers. But it is said that the Electoral Registration Officer did not follow the procedure prescribed in that behalf. The provisions relevant to the question raised may be read conveniently at this stage. Section 23 of the Representa- tion of the People Act, 1950, reads: (1) Any parson whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll. Rule 26 of the Representation of the People (preparation of Electoral Rolls) Rules, 1956, says: (i) Every application under sub-section (i) of section 23 shall be made in duplicate in Form 4 (Part 1) and shall be accompanied- (a) where it is to the chief electoral officer, by a fee of ten rupees, and (b) where it is to the electoral registration officer, by a fee of one rupee. (2) The fee specified in subsection (i) shall be paid by means of non-judicial stamps. (3) The chief electoral officer or, as the case may be, the electoral registration officer shall immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.(4) The chief electoral officer or, as the case may be, the electoral registration officer shall, as soon as may be after the expiry of the period specified in sub-rule (3), consider the objections, if any, received by him and shall, if satisfied that the appellant is entitled to be registered in the electoral roll, direct his name to be included therein.7. Section 24 of the Representation of the People Act, 1950, provides: An appeal shall lie within such time and in such manner as may be prescribed- (a) to the chief electoral officer, from any order of the electoral registration officer under section 22 or section 23, and (b) to the Election Commission, from any order of the chief electoral officer under section 23.8. Rule 27 of the Representation of the People (preparation of Electoral Rolls )Rules, 1956, prescribes the procedure for preferring appeals.9. It is not disputed that an application was filed before the registration officer for the inclusion of the appellants name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in r.26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral was clearly illegal. Under s. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the, action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil, court: but it could be rectified only in the manner prescribed by law, i. e., by preferring an appeal under r. 24 of the Rules, or by resetting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal.Such non-compliance cannot make the Officers act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.10. The Act proceeds on the basis that the voters list is final for the purpose of election. Under s. 10 of the Act, "every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other any other law for the time being in force, be qualified to be elected as a member of the Panchayat". The disqualifications are enumerated in s. 11. If he was not disqualified-in the present case, the finding is that there was no such disqualification-the appellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsif to set aside an election, and he can do so only for the reasons mentioned in s. 13 (3) of the Act. The relevant provision is in s. 13-(3) (A) (d) (i) which relates to the improper acceptance of any nomination. In view of a. 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, be is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.11. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the Munsiff could have declared. the first respondent to have been duly elected in his place.12. For the aforesaid reassons, we cannot agree with the conclusion arrived at either by the learned Muasiff or by the learned Judges of the High Court. In the result, the appeal is allowed and the election petition is dismissed with costs throughout. | 1[ds]9. It is not disputed that an application was filed before the registration officer for the inclusion of the appellants name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in r.26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral was clearly illegal. Under s. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the, action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil, court: but it could be rectified only in the manner prescribed by law, i. e., by preferring an appeal under r. 24 of the Rules, or by resetting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. Thewith the procedure prescribed does not affect his jurisdiction, though it may render his action illegal.Suchcannot make the Officers act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.10. The Act proceeds on the basis that the voters list is final for the purpose of election. Under s. 10 of the Act, "every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other any other law for the time being in force, be qualified to be elected as a member of the Panchayat". The disqualifications are enumerated in s. 11. If he was notthe present case, the finding is that there was no suchappellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsif to set aside an election, and he can do so only for the reasons mentioned in s. 13 (3) of the Act. The relevant provision is in s.(A) (d) (i) which relates to the improper acceptance of any nomination. In view of a. 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, be is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.11. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the Munsiff could have declared. the first respondent to have been duly elected in his place.12. For the aforesaid reassons, we cannot agree with the conclusion arrived at either by the learned Muasiff or by the learned Judges of the High Court. In the result, the appeal is allowed and the election petition is dismissed with costs throughout. | 1 | 2,372 | 686 | ### 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:
included in the electoral roll of the Mysore legislative Assembly before the date prescribed for filing of nomination papers. But it is said that the Electoral Registration Officer did not follow the procedure prescribed in that behalf. The provisions relevant to the question raised may be read conveniently at this stage. Section 23 of the Representa- tion of the People Act, 1950, reads: (1) Any parson whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll. Rule 26 of the Representation of the People (preparation of Electoral Rolls) Rules, 1956, says: (i) Every application under sub-section (i) of section 23 shall be made in duplicate in Form 4 (Part 1) and shall be accompanied- (a) where it is to the chief electoral officer, by a fee of ten rupees, and (b) where it is to the electoral registration officer, by a fee of one rupee. (2) The fee specified in subsection (i) shall be paid by means of non-judicial stamps. (3) The chief electoral officer or, as the case may be, the electoral registration officer shall immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.(4) The chief electoral officer or, as the case may be, the electoral registration officer shall, as soon as may be after the expiry of the period specified in sub-rule (3), consider the objections, if any, received by him and shall, if satisfied that the appellant is entitled to be registered in the electoral roll, direct his name to be included therein.7. Section 24 of the Representation of the People Act, 1950, provides: An appeal shall lie within such time and in such manner as may be prescribed- (a) to the chief electoral officer, from any order of the electoral registration officer under section 22 or section 23, and (b) to the Election Commission, from any order of the chief electoral officer under section 23.8. Rule 27 of the Representation of the People (preparation of Electoral Rolls )Rules, 1956, prescribes the procedure for preferring appeals.9. It is not disputed that an application was filed before the registration officer for the inclusion of the appellants name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in r.26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral was clearly illegal. Under s. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the, action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil, court: but it could be rectified only in the manner prescribed by law, i. e., by preferring an appeal under r. 24 of the Rules, or by resetting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal.Such non-compliance cannot make the Officers act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.10. The Act proceeds on the basis that the voters list is final for the purpose of election. Under s. 10 of the Act, "every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other any other law for the time being in force, be qualified to be elected as a member of the Panchayat". The disqualifications are enumerated in s. 11. If he was not disqualified-in the present case, the finding is that there was no such disqualification-the appellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsif to set aside an election, and he can do so only for the reasons mentioned in s. 13 (3) of the Act. The relevant provision is in s. 13-(3) (A) (d) (i) which relates to the improper acceptance of any nomination. In view of a. 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, be is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.11. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the Munsiff could have declared. the first respondent to have been duly elected in his place.12. For the aforesaid reassons, we cannot agree with the conclusion arrived at either by the learned Muasiff or by the learned Judges of the High Court. In the result, the appeal is allowed and the election petition is dismissed with costs throughout.
### Response:
1
### Explanation:
9. It is not disputed that an application was filed before the registration officer for the inclusion of the appellants name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in r.26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral was clearly illegal. Under s. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the, action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil, court: but it could be rectified only in the manner prescribed by law, i. e., by preferring an appeal under r. 24 of the Rules, or by resetting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. Thewith the procedure prescribed does not affect his jurisdiction, though it may render his action illegal.Suchcannot make the Officers act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.10. The Act proceeds on the basis that the voters list is final for the purpose of election. Under s. 10 of the Act, "every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other any other law for the time being in force, be qualified to be elected as a member of the Panchayat". The disqualifications are enumerated in s. 11. If he was notthe present case, the finding is that there was no suchappellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsif to set aside an election, and he can do so only for the reasons mentioned in s. 13 (3) of the Act. The relevant provision is in s.(A) (d) (i) which relates to the improper acceptance of any nomination. In view of a. 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, be is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.11. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the Munsiff could have declared. the first respondent to have been duly elected in his place.12. For the aforesaid reassons, we cannot agree with the conclusion arrived at either by the learned Muasiff or by the learned Judges of the High Court. In the result, the appeal is allowed and the election petition is dismissed with costs throughout.
|
Mansukhlal Vithaldas Chauhan Vs. State Of Gujarat | away by the High Court. 33. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The high Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court. 34. Learned counsel for the State of Gujarat contended that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final. This contention is wholly devoid of substance. The appellant has questioned the legality of "sanction" on many grounds one of which is that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the `sanction order was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings. 35. There is another aspect of the matter. 36. The High Court by its order dated 21.1.1985 had directed the Secretary, Road and Building Department, to grant sanction within one month from the receipt of the order. The sanction order (Exhibit 9) is dated 23rd January, 1985 and is signed by Shri J.P. Lade, Deputy Secretary to the Government of Gujarat, Road and Building Department. Shri Lade has been examined as PW-8. He stated that on the relevant date, he was serving as Under Secretary and was also holding the additional charge of the Deputy Secretary, Road and Building Department and in that capacity, he gave the sanction as he felt that there was sufficient evidence against the appellant warranting his prosecution.37. PW-14, Shri Pravinchandra Jaisukhlal, who was the Secretary, Road and Building Department, where Shri Lade was the Under Secretary, stated that he had given the sanction for prosecution of the appellant. He further stated that before according sanction he had seen all the papers. He also stated that the signature on Exhibit 9 was that of Shri Lade as the correspondence is usually done by the Under Secretary after the orders are passed on the file. 38. From the notings of the Secretariat file, contained in Exhibit 70, as also the conflicting statements made by the Secretary and the Under Secretary, it is not possible to hold as to who actually granted the sanction. The Gujarat High Court has held that the sanction was granted by the Deputy Secretary, Shri Lade (PW-8), ignoring the fact that the file was also placed before the Secretary and he had also put his signature thereon. The file had, admittedly, been sent to the office of the Chief Minister from where it was received back on 30th January, 1985 and as such it is not understandable as to how sanction could be granted on 23rd January, 1985. This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. Secretary being the head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction. Deputy Secretary, who actually issued the order of sanction, he signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of appellants prosecution with the consequence that whole proceedings stood void ab initio.39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial. | 1[ds]On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the `sanction order was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings.From the notings of the Secretariat file, contained in Exhibit 70, as also the conflicting statements made by the Secretary and the Under Secretary, it is not possible to hold as to who actually granted the sanction. The Gujarat High Court has held that the sanction was granted by the Deputy Secretary, Shri Lade (PW-8), ignoring the fact that the file was also placed before the Secretary and he had also put his signature thereon. The file had, admittedly, been sent to the office of the Chief Minister from where it was received back on 30th January, 1985 and as such it is not understandable as to how sanction could be granted on 23rd January, 1985. This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. Secretary being the head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction. Deputy Secretary, who actually issued the order of sanction, he signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of appellants prosecution with the consequence that whole proceedings stood void ab initio.39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial. | 1 | 5,793 | 589 | ### 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:
away by the High Court. 33. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The high Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court. 34. Learned counsel for the State of Gujarat contended that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final. This contention is wholly devoid of substance. The appellant has questioned the legality of "sanction" on many grounds one of which is that the sanctioning authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the `sanction order was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings. 35. There is another aspect of the matter. 36. The High Court by its order dated 21.1.1985 had directed the Secretary, Road and Building Department, to grant sanction within one month from the receipt of the order. The sanction order (Exhibit 9) is dated 23rd January, 1985 and is signed by Shri J.P. Lade, Deputy Secretary to the Government of Gujarat, Road and Building Department. Shri Lade has been examined as PW-8. He stated that on the relevant date, he was serving as Under Secretary and was also holding the additional charge of the Deputy Secretary, Road and Building Department and in that capacity, he gave the sanction as he felt that there was sufficient evidence against the appellant warranting his prosecution.37. PW-14, Shri Pravinchandra Jaisukhlal, who was the Secretary, Road and Building Department, where Shri Lade was the Under Secretary, stated that he had given the sanction for prosecution of the appellant. He further stated that before according sanction he had seen all the papers. He also stated that the signature on Exhibit 9 was that of Shri Lade as the correspondence is usually done by the Under Secretary after the orders are passed on the file. 38. From the notings of the Secretariat file, contained in Exhibit 70, as also the conflicting statements made by the Secretary and the Under Secretary, it is not possible to hold as to who actually granted the sanction. The Gujarat High Court has held that the sanction was granted by the Deputy Secretary, Shri Lade (PW-8), ignoring the fact that the file was also placed before the Secretary and he had also put his signature thereon. The file had, admittedly, been sent to the office of the Chief Minister from where it was received back on 30th January, 1985 and as such it is not understandable as to how sanction could be granted on 23rd January, 1985. This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. Secretary being the head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction. Deputy Secretary, who actually issued the order of sanction, he signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of appellants prosecution with the consequence that whole proceedings stood void ab initio.39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial.
### Response:
1
### Explanation:
On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office. Since the correctness and validity of the `sanction order was assailed before us, we had necessarily to consider the High Court judgment and its impact on the "Sanction". The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the proceedings.From the notings of the Secretariat file, contained in Exhibit 70, as also the conflicting statements made by the Secretary and the Under Secretary, it is not possible to hold as to who actually granted the sanction. The Gujarat High Court has held that the sanction was granted by the Deputy Secretary, Shri Lade (PW-8), ignoring the fact that the file was also placed before the Secretary and he had also put his signature thereon. The file had, admittedly, been sent to the office of the Chief Minister from where it was received back on 30th January, 1985 and as such it is not understandable as to how sanction could be granted on 23rd January, 1985. This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. Secretary being the head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction. Deputy Secretary, who actually issued the order of sanction, he signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of appellants prosecution with the consequence that whole proceedings stood void ab initio.39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial.
|
Akhilesh Yadav Vs. Vishwanath Chaturvedi | for the Writ Petitioner, Vishwanath Chaturvedi, Mr. K.T.S. Tulsi, learned Senior Advocate, submitted that every order in which a mistake may be noticed does not automatically call for a review and that the power of review could be invoked only in circumstances as contained in Order 47 Rule 1 of the Code of Civil Procedure (CPC). Referring to the decision dated 16th June, 2008 of this Court in State of West Bengal Vs. Kamal Sengupta and Anr. in Civil Appeal No.1694 of 2006, Mr. Tulsi submitted that the term “mistake or error apparent” which finds place in Order 47 Rule 1 CPC, by its very connotation signifies an error which is evident per se from the record of the case and does not require any detailed examination, scrutiny and elucidation either of the facts or legal position. In fact, in Parsion Devi Vs. Sumitri Devi [(1997) 8 SCC 715] it was observed that if an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC. In other words, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken on a point of fact or law, as the Court could not sit in appeal over its own judgment. Similar views were expressed by a Five-Judge Bench of the Federal Court in Sir Hari Shankar Pal and Anr. Vs. Anath Nath Mitter & Ors. [(1949) FCR 36], wherein it was, inter alia, observed that a decision being erroneous in law is certainly no ground for ordering review. 22. Various other decisions were also referred to which will only serve to duplicate the decisions of this Court on the said issue.23. As has been indicated in paragraph 5 of this judgment, five broad propositions were canvassed on behalf of the review petitioner, Shri Akhilesh Yadav, which were mainly confined to the jurisdiction of the High Court and the Supreme Court to direct a CBI inquiry in respect of an offence alleged to have been committed within a State, without the consent of the State concerned. Along with the above, the locus standi of the writ petitioner to maintain the writ petition was also raised on behalf of Shri Yadav. While the submissions on behalf of all the review petitioners were centered around the said two propositions, a specific issue was raised by Mr. Mukul Rohatgi as to whether the investigation and/or inquiry could also be extended to the assets of Smt. Dimple Yadav, wife of Shri Akhilesh Yadav, since she had neither held any post under the Government nor was she involved in the activities of her husband or father-in-law, Shri Mulayam Singh Yadav. The acquisition of wealth by her was attributed to her agricultural income and not to any source of income through her husband and her father-in-law. 24. Same were the submissions made by Dr. Rajiv Dhawan, appearing for Shri Prateek Yadav, and, in addition, it was submitted that the said Respondent did not get a reasonable opportunity of stating his case before the judgment was delivered in Writ Petition (C) No.633 of 2005 on 1st March, 2007. 25. As far as the first contention is concerned, the same has been set at rest by the Constitution Bench in State of West Bengal & Ors. Vs. The Committee for Protection of Democratic Rights, West Bengal & Ors., being Civil Appeal Nos.6249-6250 of 2001. In the very first paragraph of its judgment the Constitution Bench set out the issue, which had been referred to it for its opinion in the following terms : “The issue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short “the CBI”), established under the Delhi Special Police Establishment Act, 1946 (for short “the Special Police Act”), to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.” 26. After considering the various decisions on this point, as also Article 246 of the Constitution, the Constitution Bench ultimately answered the reference in the manner following : “In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.” 27. A note of caution was also given by the Constitution Bench, which, in fact, finds place in all the decisions relating to this issue, namely, that the power which is vested in the superior courts should be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The said note of caution is an echo of the observations made by this Court in Supreme Court Bar Association Vs. Union of India & Anr. [(1998) 4 SCC 409] , that such an inquiry by the CBI could be justified in certain circumstances to prevent any obstruction to the stream of justice. | 0[ds]7. Mr. Rakesh Dwivedi, learned Senior Advocate, appearing for the Review Petitioners, Shri Akhilesh Yadav and Smt. Dimple Yadav did not press the first proposition, since, as indicated hereinbefore, the said question had been settled by the Constitution Bench.In addition to the above petitions, we had also considered I.A. Nos.16 and 17 of 2009 which had been filed by one Shri Ashutosh Srivastava, who appearedin support of his application for being impleaded. Having heard learned counsel for the Respondents and the Applicant inperson, we had reserved orders on the same.20. In the facts and circumstances of the case, we are not inclined to implead Shri Srivastava in these proceedings and his application for being impleaded stands rejected.Various other decisions were also referred to which will only serve to duplicate the decisions of this Court on the said. As far as the first contention is concerned, the same has been set at rest by the Constitution Bench in State of West Bengal & Ors. Vs. The Committee for Protection of Democratic Rights, West Bengal & Ors., being Civil Appealof 2001. In the very first paragraph of its judgment the Constitution Bench set out the issue, which had been referred to it for its opinion in the following termsissue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short, established under the Delhi Special Police Establishment Act, 1946 (for shortto investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.After considering the various decisions on this point, as also Article 246 of the Constitution, the Constitution Bench ultimately answered the reference in the manner followingthe final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.A note of caution was also given by the Constitution Bench, which, in fact, finds place in all the decisions relating to this issue, namely, that the power which is vested in the superior courts should be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The said note of caution is an echo of the observations made by this Court in Supreme Court Bar Association Vs. Union of India & Anr. [(1998) 4 SCC 409] , that such an inquiry by the CBI could be justified in certain circumstances to prevent any obstruction to the stream of justice. | 0 | 5,141 | 622 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
for the Writ Petitioner, Vishwanath Chaturvedi, Mr. K.T.S. Tulsi, learned Senior Advocate, submitted that every order in which a mistake may be noticed does not automatically call for a review and that the power of review could be invoked only in circumstances as contained in Order 47 Rule 1 of the Code of Civil Procedure (CPC). Referring to the decision dated 16th June, 2008 of this Court in State of West Bengal Vs. Kamal Sengupta and Anr. in Civil Appeal No.1694 of 2006, Mr. Tulsi submitted that the term “mistake or error apparent” which finds place in Order 47 Rule 1 CPC, by its very connotation signifies an error which is evident per se from the record of the case and does not require any detailed examination, scrutiny and elucidation either of the facts or legal position. In fact, in Parsion Devi Vs. Sumitri Devi [(1997) 8 SCC 715] it was observed that if an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC. In other words, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken on a point of fact or law, as the Court could not sit in appeal over its own judgment. Similar views were expressed by a Five-Judge Bench of the Federal Court in Sir Hari Shankar Pal and Anr. Vs. Anath Nath Mitter & Ors. [(1949) FCR 36], wherein it was, inter alia, observed that a decision being erroneous in law is certainly no ground for ordering review. 22. Various other decisions were also referred to which will only serve to duplicate the decisions of this Court on the said issue.23. As has been indicated in paragraph 5 of this judgment, five broad propositions were canvassed on behalf of the review petitioner, Shri Akhilesh Yadav, which were mainly confined to the jurisdiction of the High Court and the Supreme Court to direct a CBI inquiry in respect of an offence alleged to have been committed within a State, without the consent of the State concerned. Along with the above, the locus standi of the writ petitioner to maintain the writ petition was also raised on behalf of Shri Yadav. While the submissions on behalf of all the review petitioners were centered around the said two propositions, a specific issue was raised by Mr. Mukul Rohatgi as to whether the investigation and/or inquiry could also be extended to the assets of Smt. Dimple Yadav, wife of Shri Akhilesh Yadav, since she had neither held any post under the Government nor was she involved in the activities of her husband or father-in-law, Shri Mulayam Singh Yadav. The acquisition of wealth by her was attributed to her agricultural income and not to any source of income through her husband and her father-in-law. 24. Same were the submissions made by Dr. Rajiv Dhawan, appearing for Shri Prateek Yadav, and, in addition, it was submitted that the said Respondent did not get a reasonable opportunity of stating his case before the judgment was delivered in Writ Petition (C) No.633 of 2005 on 1st March, 2007. 25. As far as the first contention is concerned, the same has been set at rest by the Constitution Bench in State of West Bengal & Ors. Vs. The Committee for Protection of Democratic Rights, West Bengal & Ors., being Civil Appeal Nos.6249-6250 of 2001. In the very first paragraph of its judgment the Constitution Bench set out the issue, which had been referred to it for its opinion in the following terms : “The issue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short “the CBI”), established under the Delhi Special Police Establishment Act, 1946 (for short “the Special Police Act”), to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.” 26. After considering the various decisions on this point, as also Article 246 of the Constitution, the Constitution Bench ultimately answered the reference in the manner following : “In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.” 27. A note of caution was also given by the Constitution Bench, which, in fact, finds place in all the decisions relating to this issue, namely, that the power which is vested in the superior courts should be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The said note of caution is an echo of the observations made by this Court in Supreme Court Bar Association Vs. Union of India & Anr. [(1998) 4 SCC 409] , that such an inquiry by the CBI could be justified in certain circumstances to prevent any obstruction to the stream of justice.
### Response:
0
### Explanation:
7. Mr. Rakesh Dwivedi, learned Senior Advocate, appearing for the Review Petitioners, Shri Akhilesh Yadav and Smt. Dimple Yadav did not press the first proposition, since, as indicated hereinbefore, the said question had been settled by the Constitution Bench.In addition to the above petitions, we had also considered I.A. Nos.16 and 17 of 2009 which had been filed by one Shri Ashutosh Srivastava, who appearedin support of his application for being impleaded. Having heard learned counsel for the Respondents and the Applicant inperson, we had reserved orders on the same.20. In the facts and circumstances of the case, we are not inclined to implead Shri Srivastava in these proceedings and his application for being impleaded stands rejected.Various other decisions were also referred to which will only serve to duplicate the decisions of this Court on the said. As far as the first contention is concerned, the same has been set at rest by the Constitution Bench in State of West Bengal & Ors. Vs. The Committee for Protection of Democratic Rights, West Bengal & Ors., being Civil Appealof 2001. In the very first paragraph of its judgment the Constitution Bench set out the issue, which had been referred to it for its opinion in the following termsissue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short, established under the Delhi Special Police Establishment Act, 1946 (for shortto investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.After considering the various decisions on this point, as also Article 246 of the Constitution, the Constitution Bench ultimately answered the reference in the manner followingthe final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.A note of caution was also given by the Constitution Bench, which, in fact, finds place in all the decisions relating to this issue, namely, that the power which is vested in the superior courts should be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The said note of caution is an echo of the observations made by this Court in Supreme Court Bar Association Vs. Union of India & Anr. [(1998) 4 SCC 409] , that such an inquiry by the CBI could be justified in certain circumstances to prevent any obstruction to the stream of justice.
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Manganese Ore India Ltd Vs. State of M.P. & Others | into a new commodity commercially known as a distinct and separate commodity having its own character, use and name whether it be the result of one process or several processes, manufacture takes place; the transformation of the goods into a new and different article should be such that in the commercial world it is known as another and different article. Pre-recorded audio cassettes are certainly goods known in the market as distinct and different from blank audio cassettes. The two have different uses. A pre-recorded audio cassette is generally sold by reference to its name or title which is suggestive of the contents of the audio recording on the cassette. The appellant is indulging in a mass production of such pre-recorded audio cassettes. It is a manufacturing activity. The appellants activity cannot be compared with a person sitting in the market extending the facility of recording any demanded music or sounds on a blank audio cassette brought by or made available to the customer, which activity may be called a service. The Tribunal was not right in equating the appellants activity with photoprocessing and holding the appellant a service industry."26. In Aspinwall & Co. Ltd. (supra) this Court has held as follows:-"13. The word "manufacture" has not been defined in the Act. In the absence of a definition of the word "manufacture" it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity.14. This Court while determining as to what would amount to a manufacturing activity, held in CST v. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was observed: (SCC p. 176, para 5)"Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place."15. Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from the raw material from which it was manufactured. A distinct change comes about in the finished product.16. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and production of a new article cannot be accepted. The process is a manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which results in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is a commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity."27. This Court in Servo-Med Industries Pvt. Ltd. v. Commissioner of Central Excise, 2015 (6) SCALE 137 has held as under:-"27.(1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes which remove foreign matter from goods complete in themselves and/or processes which clean goods that are complete in themselves fall within this category.""27.(4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place."28. Thus, the Ferro Manganese Plant, being a unit involved in manufacturing of ferromanganese alloy as opposed to a unit involved in crushing, treating, processing, etc. of manganese ore, cannot be treated within the extended definition of `mine within the Explanation (b) of Part B of Table of Rates of Duty to Section 3(1) of the Act.29. The Executive Engineer and Chief Electrical Inspector, Government of Madhya Pradesh, vide its letter dated 06.02.2005 to the Superintendent Engineer and Deputy Electrical Inspector, Government of Madhya Pradesh, had confirmed as under:-"On spot inspection it is confirmed that, Ferro Manganese Plant does not come in the Mining Area and Electricity Duty @ 8% being charged at present by the M.P. State Electricity Board is proper."30. The Ferromanganese Alloy so manufactured by the appellant using the mineral Manganese at its Ferromanganese plant is an entirely different product from its mineral raw material both physically and even chemically. Moreover, unlike Manganese ore a ferromanganese alloy can never be found in the natural state and it has to be manufactured from the manganese ore and other minerals only. The same logic applies to copper concentrate as a different and distinct product comes into existence. | 1[ds]18. Mining would comprehend every activity by which the mineral is extracted or obtained from earth irrespective of whether such activity is carried on at the surface or in the bowel, but it must be an activity for winning a mineral. For the purpose of Item 3 `mine to which electrical energy is sold, supplied or consumed, it would include machinery or premises situated in the adjacent to the mine, provided the electricity is used for crushing, processing, treating or transporting the minerals. The word `mineral used in the aforesaid Explanation under the Act would have reference to the mineral which is mined and is then crushed, processed, treated or transported. The word `processing used in the Explanation has to be interpreted in the context and for the purpose of the said item. Process can be given either a wide or a narrow meaning. In the context in which it is used in the Explanation, we are disposed to think that it must be given a meaning which emerges when we apply the rule of noscitur a sociis which means that the meaning of the word is to be judged by the company it keeps. [See : Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, (1990) 3 SCC 447 ]. The rule of noscitur a sociis has been applied and accepted in Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer & Ors., 2004(1) S.C.T. 667 : (2004) 1 SCC 755. We would prefer to construe the said word in the Explanation with reference to the words before and after for the word `processing used therein. The word `processing herein, we think, should be interpreted and understood with the associated words `crushing and `treating. The word `processing is susceptible of the meaning keeping in view the word `crushing and `treatment used before and afterwards.19. We are absolutely conscious that noscitur a sociis rule is not applied when the language is clear and there is no ambiguity, which according to us does exist and perceptible in the Explanation in question. A very broad and a wide definition of the term `processing if applied, would include manufacture of a new or distinct product. Manufacture normally involves a series of processes either by hand or machine. If a restricted construction is not applied it would create and give rise to unacceptable consequences. It is not the intent to treat and regard manufacturing activities as processing. Manufacturing, as is understood, means a series of processes through different stages in which the raw material is subjected to change by different operations. [For different between process and manufacturing see CIT v. Tara Agency, (2007) 6 SCC 429 , Orient Paper and Industries v. State of M.P. and Anr., (2006) 12 SCC 468 and Aspinwall & Co. Ltd. v. Commissioner of Income Tax, Ernakulam, (2001) 7 SCC 525. Thus, the Ferro Manganese Plant, being a unit involved in manufacturing of ferromanganese alloy as opposed to a unit involved in crushing, treating, processing, etc. of manganese ore, cannot be treated within the extended definition of `mine within the Explanation (b) of Part B of Table of Rates of Duty to Section 3(1) of the Act.The Ferromanganese Alloy so manufactured by the appellant using the mineral Manganese at its Ferromanganese plant is an entirely different product from its mineral raw material both physically and even chemically. Moreover, unlike Manganese ore a ferromanganese alloy can never be found in the natural state and it has to be manufactured from the manganese ore and other minerals only. The same logic applies to copper concentrate as a different and distinct product comes into existence. | 1 | 7,941 | 695 | ### 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:
into a new commodity commercially known as a distinct and separate commodity having its own character, use and name whether it be the result of one process or several processes, manufacture takes place; the transformation of the goods into a new and different article should be such that in the commercial world it is known as another and different article. Pre-recorded audio cassettes are certainly goods known in the market as distinct and different from blank audio cassettes. The two have different uses. A pre-recorded audio cassette is generally sold by reference to its name or title which is suggestive of the contents of the audio recording on the cassette. The appellant is indulging in a mass production of such pre-recorded audio cassettes. It is a manufacturing activity. The appellants activity cannot be compared with a person sitting in the market extending the facility of recording any demanded music or sounds on a blank audio cassette brought by or made available to the customer, which activity may be called a service. The Tribunal was not right in equating the appellants activity with photoprocessing and holding the appellant a service industry."26. In Aspinwall & Co. Ltd. (supra) this Court has held as follows:-"13. The word "manufacture" has not been defined in the Act. In the absence of a definition of the word "manufacture" it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity.14. This Court while determining as to what would amount to a manufacturing activity, held in CST v. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was observed: (SCC p. 176, para 5)"Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place."15. Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from the raw material from which it was manufactured. A distinct change comes about in the finished product.16. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and production of a new article cannot be accepted. The process is a manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which results in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is a commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity."27. This Court in Servo-Med Industries Pvt. Ltd. v. Commissioner of Central Excise, 2015 (6) SCALE 137 has held as under:-"27.(1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes which remove foreign matter from goods complete in themselves and/or processes which clean goods that are complete in themselves fall within this category.""27.(4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place."28. Thus, the Ferro Manganese Plant, being a unit involved in manufacturing of ferromanganese alloy as opposed to a unit involved in crushing, treating, processing, etc. of manganese ore, cannot be treated within the extended definition of `mine within the Explanation (b) of Part B of Table of Rates of Duty to Section 3(1) of the Act.29. The Executive Engineer and Chief Electrical Inspector, Government of Madhya Pradesh, vide its letter dated 06.02.2005 to the Superintendent Engineer and Deputy Electrical Inspector, Government of Madhya Pradesh, had confirmed as under:-"On spot inspection it is confirmed that, Ferro Manganese Plant does not come in the Mining Area and Electricity Duty @ 8% being charged at present by the M.P. State Electricity Board is proper."30. The Ferromanganese Alloy so manufactured by the appellant using the mineral Manganese at its Ferromanganese plant is an entirely different product from its mineral raw material both physically and even chemically. Moreover, unlike Manganese ore a ferromanganese alloy can never be found in the natural state and it has to be manufactured from the manganese ore and other minerals only. The same logic applies to copper concentrate as a different and distinct product comes into existence.
### Response:
1
### Explanation:
18. Mining would comprehend every activity by which the mineral is extracted or obtained from earth irrespective of whether such activity is carried on at the surface or in the bowel, but it must be an activity for winning a mineral. For the purpose of Item 3 `mine to which electrical energy is sold, supplied or consumed, it would include machinery or premises situated in the adjacent to the mine, provided the electricity is used for crushing, processing, treating or transporting the minerals. The word `mineral used in the aforesaid Explanation under the Act would have reference to the mineral which is mined and is then crushed, processed, treated or transported. The word `processing used in the Explanation has to be interpreted in the context and for the purpose of the said item. Process can be given either a wide or a narrow meaning. In the context in which it is used in the Explanation, we are disposed to think that it must be given a meaning which emerges when we apply the rule of noscitur a sociis which means that the meaning of the word is to be judged by the company it keeps. [See : Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, (1990) 3 SCC 447 ]. The rule of noscitur a sociis has been applied and accepted in Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer & Ors., 2004(1) S.C.T. 667 : (2004) 1 SCC 755. We would prefer to construe the said word in the Explanation with reference to the words before and after for the word `processing used therein. The word `processing herein, we think, should be interpreted and understood with the associated words `crushing and `treating. The word `processing is susceptible of the meaning keeping in view the word `crushing and `treatment used before and afterwards.19. We are absolutely conscious that noscitur a sociis rule is not applied when the language is clear and there is no ambiguity, which according to us does exist and perceptible in the Explanation in question. A very broad and a wide definition of the term `processing if applied, would include manufacture of a new or distinct product. Manufacture normally involves a series of processes either by hand or machine. If a restricted construction is not applied it would create and give rise to unacceptable consequences. It is not the intent to treat and regard manufacturing activities as processing. Manufacturing, as is understood, means a series of processes through different stages in which the raw material is subjected to change by different operations. [For different between process and manufacturing see CIT v. Tara Agency, (2007) 6 SCC 429 , Orient Paper and Industries v. State of M.P. and Anr., (2006) 12 SCC 468 and Aspinwall & Co. Ltd. v. Commissioner of Income Tax, Ernakulam, (2001) 7 SCC 525. Thus, the Ferro Manganese Plant, being a unit involved in manufacturing of ferromanganese alloy as opposed to a unit involved in crushing, treating, processing, etc. of manganese ore, cannot be treated within the extended definition of `mine within the Explanation (b) of Part B of Table of Rates of Duty to Section 3(1) of the Act.The Ferromanganese Alloy so manufactured by the appellant using the mineral Manganese at its Ferromanganese plant is an entirely different product from its mineral raw material both physically and even chemically. Moreover, unlike Manganese ore a ferromanganese alloy can never be found in the natural state and it has to be manufactured from the manganese ore and other minerals only. The same logic applies to copper concentrate as a different and distinct product comes into existence.
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Guruvamma Vs. State of Karnataka & Others | 1. Leave granted.2. The appellants husband late Annegowda had participated in an auction held on 5th /6th May, 1999 for lease of retail vend of arrack for the Excise Year 1999-2000 in respect of Mandya Taluk and Pandavanapura Taluk. He was the successful bidder. His bid was provisionally accepted and he deposited one months rent as earnest money i.e. amounting to Rs.94,00,100/-. The offer made by the husband of the appellant was confirmed by the Deputy Commissioner of Excise by his order dated 12th May, 1999 and the said confirmation order was communicated to the appellants husband on 1st June, 1999 and he was asked to execute the lease agreement. Though there is some controversy here, for the purposes of the present case still we will proceed on the basis that the said confirmation order dated 12th May, 1999 was communicated to the appellants husband on 1st June, 1999 and received by him on the same day. The appellants husband was required to execute a lease agreement within 15 days therefrom, as prescribed by Rule 16 of the Karnataka Excise (Lease of Rights of Retail Vend of Liquor) Rules, 1969 (hereinafter referred to as "1969 Rules"). However, on 16th June, 1999 the appellants husband passed away. The death, therefore, took place within 15 days of the date of receipt of the confirmation order i.e. 1st June, 1999. An offer was made to the appellant to run the business and execute the lease agreement. She declined the said offer on grounds of old age and inexperience in the field. At this stage, the bid offered by the appellants husband was canceled and the earnest money deposited by him was forfeited. The respondents proceeded to re-auction the lease and made the appellant liable for the loss that was occasioned to the State on account of such re-auction. The said amount was quantified at Rs.3,15,18,991.00. Aggrieved, the appellant moved the High Court.3. A learned single judge of the High court dismissed the writ petition against which a Writ Appeal was filed. The Division Bench of the High Court took the view that the amount of loss on account of re-auction should not be fastened on the appellant However, so far as the forfeiture of the earnest money is concerned, the Division Bench upheld the finding of the learned single judge and the decision of the authority that the said amount is liable to be forfeited. The Bench worked out the liability of the appellant at Rs.2,21,18,991/- by subtracting the amount of earnest money from the earlier computed figure of loss suffered due to the re-auction proceedings (Rs.3,15,18,991.00 – Rs.94,00,100.00). Aggrieved, this appeal has been filed.4. We have heard the learned counsels for the parties.5. The matter lies within a short compass. In view of the partial relief granted to the appellant by the Division Bench of the High Court, the issue with regard to forfeiture of the earnest money alone would require consideration. Under Rule 16 of the 1969 Rules, the person whose tender, offer or bid is confirmed under Rule 15 is required to execute the lease agreement with the State Government within 15 days from the date of communication of the confirmation order which in the present case is stated to be communicated on 1st June, 1999. The appellants husband passed away on 16th June, 1999. Therefore, it is on the 15th day from the date of communication and receipt of the confirmation order that the appellants husband had passed away. In other words, the period of 15 days contemplated by Rule 16 had not expired at the time of the death of the appellants husband so as to attract the liability sought to be imposed on the appellant by way of forfeiture of the earnest money. Irrespective of the above the fact of the death of appellants husband ought to have evoked compassion on the part of the State to relax the rigor of the Rules even assuming that the requirement of the Rules were not met. The argument that the leasehold right is a heritable right making the appellant, as the legal heir of her husband, liable cannot be accepted as no lease itself had been executed between the deceased husband of the appellant and the State Government. What really is contemplated by Rule 16 is the cancellation of the right to retail vend of liquor on failure to execute the lease deed. Such right must be deemed to have come to an end on the death of the appellants husband on 16th June, 1999. | 1[ds]5. The matter lies within a short compass. In view of the partial relief granted to the appellant by the Division Bench of the High Court, the issue with regard to forfeiture of the earnest money alone would require consideration. Under Rule 16 of the 1969 Rules, the person whose tender, offer or bid is confirmed under Rule 15 is required to execute the lease agreement with the State Government within 15 days from the date of communication of the confirmation order which in the present case is stated to be communicated on 1st June, 1999. The appellants husband passed away on 16th June, 1999. Therefore, it is on the 15th day from the date of communication and receipt of the confirmation order that the appellants husband had passed away. In other words, the period of 15 days contemplated by Rule 16 had not expired at the time of the death of the appellants husband so as to attract the liability sought to be imposed on the appellant by way of forfeiture of the earnest money. Irrespective of the above the fact of the death of appellants husband ought to have evoked compassion on the part of the State to relax the rigor of the Rules even assuming that the requirement of the Rules were not met. The argument that the leasehold right is a heritable right making the appellant, as the legal heir of her husband, liable cannot be accepted as no lease itself had been executed between the deceased husband of the appellant and the State Government. What really is contemplated by Rule 16 is the cancellation of the right to retail vend of liquor on failure to execute the lease deed. Such right must be deemed to have come to an end on the death of the appellants husband on 16th June, 1999. | 1 | 826 | 332 | ### 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:
1. Leave granted.2. The appellants husband late Annegowda had participated in an auction held on 5th /6th May, 1999 for lease of retail vend of arrack for the Excise Year 1999-2000 in respect of Mandya Taluk and Pandavanapura Taluk. He was the successful bidder. His bid was provisionally accepted and he deposited one months rent as earnest money i.e. amounting to Rs.94,00,100/-. The offer made by the husband of the appellant was confirmed by the Deputy Commissioner of Excise by his order dated 12th May, 1999 and the said confirmation order was communicated to the appellants husband on 1st June, 1999 and he was asked to execute the lease agreement. Though there is some controversy here, for the purposes of the present case still we will proceed on the basis that the said confirmation order dated 12th May, 1999 was communicated to the appellants husband on 1st June, 1999 and received by him on the same day. The appellants husband was required to execute a lease agreement within 15 days therefrom, as prescribed by Rule 16 of the Karnataka Excise (Lease of Rights of Retail Vend of Liquor) Rules, 1969 (hereinafter referred to as "1969 Rules"). However, on 16th June, 1999 the appellants husband passed away. The death, therefore, took place within 15 days of the date of receipt of the confirmation order i.e. 1st June, 1999. An offer was made to the appellant to run the business and execute the lease agreement. She declined the said offer on grounds of old age and inexperience in the field. At this stage, the bid offered by the appellants husband was canceled and the earnest money deposited by him was forfeited. The respondents proceeded to re-auction the lease and made the appellant liable for the loss that was occasioned to the State on account of such re-auction. The said amount was quantified at Rs.3,15,18,991.00. Aggrieved, the appellant moved the High Court.3. A learned single judge of the High court dismissed the writ petition against which a Writ Appeal was filed. The Division Bench of the High Court took the view that the amount of loss on account of re-auction should not be fastened on the appellant However, so far as the forfeiture of the earnest money is concerned, the Division Bench upheld the finding of the learned single judge and the decision of the authority that the said amount is liable to be forfeited. The Bench worked out the liability of the appellant at Rs.2,21,18,991/- by subtracting the amount of earnest money from the earlier computed figure of loss suffered due to the re-auction proceedings (Rs.3,15,18,991.00 – Rs.94,00,100.00). Aggrieved, this appeal has been filed.4. We have heard the learned counsels for the parties.5. The matter lies within a short compass. In view of the partial relief granted to the appellant by the Division Bench of the High Court, the issue with regard to forfeiture of the earnest money alone would require consideration. Under Rule 16 of the 1969 Rules, the person whose tender, offer or bid is confirmed under Rule 15 is required to execute the lease agreement with the State Government within 15 days from the date of communication of the confirmation order which in the present case is stated to be communicated on 1st June, 1999. The appellants husband passed away on 16th June, 1999. Therefore, it is on the 15th day from the date of communication and receipt of the confirmation order that the appellants husband had passed away. In other words, the period of 15 days contemplated by Rule 16 had not expired at the time of the death of the appellants husband so as to attract the liability sought to be imposed on the appellant by way of forfeiture of the earnest money. Irrespective of the above the fact of the death of appellants husband ought to have evoked compassion on the part of the State to relax the rigor of the Rules even assuming that the requirement of the Rules were not met. The argument that the leasehold right is a heritable right making the appellant, as the legal heir of her husband, liable cannot be accepted as no lease itself had been executed between the deceased husband of the appellant and the State Government. What really is contemplated by Rule 16 is the cancellation of the right to retail vend of liquor on failure to execute the lease deed. Such right must be deemed to have come to an end on the death of the appellants husband on 16th June, 1999.
### Response:
1
### Explanation:
5. The matter lies within a short compass. In view of the partial relief granted to the appellant by the Division Bench of the High Court, the issue with regard to forfeiture of the earnest money alone would require consideration. Under Rule 16 of the 1969 Rules, the person whose tender, offer or bid is confirmed under Rule 15 is required to execute the lease agreement with the State Government within 15 days from the date of communication of the confirmation order which in the present case is stated to be communicated on 1st June, 1999. The appellants husband passed away on 16th June, 1999. Therefore, it is on the 15th day from the date of communication and receipt of the confirmation order that the appellants husband had passed away. In other words, the period of 15 days contemplated by Rule 16 had not expired at the time of the death of the appellants husband so as to attract the liability sought to be imposed on the appellant by way of forfeiture of the earnest money. Irrespective of the above the fact of the death of appellants husband ought to have evoked compassion on the part of the State to relax the rigor of the Rules even assuming that the requirement of the Rules were not met. The argument that the leasehold right is a heritable right making the appellant, as the legal heir of her husband, liable cannot be accepted as no lease itself had been executed between the deceased husband of the appellant and the State Government. What really is contemplated by Rule 16 is the cancellation of the right to retail vend of liquor on failure to execute the lease deed. Such right must be deemed to have come to an end on the death of the appellants husband on 16th June, 1999.
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Bhajan Lal Vs. State of Punjab and Others | in kind, or give proof of having paid it or of the fact that he is not liable to pay the whole or part of the rent, or of the fact of the landlords refusal to receive the same or to give a receipt, within the period specified in the notice.Section 18 of the Act, insofar as it is relevant provides"(1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner-(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or(iii) * shall be entitled to purchase from the land-owner the land so held by him but not included in the reserved area of the landowner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within clause (iii) within a period of one year from the date of commencement of this Act.By virtue of S. 14-A the land-owner may obtain possession of the land on the ground of non-payment of rent by a proceeding filed before the Assistant Collector, during the subsistence of the tenancy. If the tenant has remained in continuous occupation of the land for a minimum period of six years he is entitled to purchase the land under S. 18 of the Act.4. It was urged that since S. 18 commence with a non obstante clause, viz. "Notwithstanding anything to the contrary contained in any law, usage or contract", if a proceeding in ejectment is lodged against the tenant which ultimately is allowed, the tenant cannot make a claim during the pendency of the proceeding to purchase the land. To hold otherwise, it was urged, would enable a tenant in default to defeat the claim in a suit in ejectment by commencing a proceeding for purchasing the land. We do not think that the expression "Notwithstanding anything to the contrary contained in any law, usage or contract" whittles down the right of the tenant at the date when he makes a claim to purchase the land merely because the tenancy is liable to be terminated in a proceeding then pending for an order in ejectment under s. 14-A, at the instance of the land-owner. Under the Act, the tenancy does not stand terminated merely because a proceeding in ejectment is instituted. The tenancy is determined only in the conditions, prescribed by s. 9 and in the manner provided by s. 14-A. If a tenant is in default in payment of rent the land-owner desiring to recover rent due by the tenant may apply in writing to the Assistant Collector who shall thereupon send a notice to the tenant to deposit the rent due or give proof of having paid it. If the tenant fails to pay the rent or give proof of payment, the Assistant Collector shall, after a summary inquiry, if he is of the view that the tenant has not paid or deposited-the rent, eject the tenant summarily and put the land-owner in possession of the land concerned. But so long as the Assistant Collector has not passed the order , ejecting the tenant the right of the tenant is not extinguished: he continues to remain a tenant and being a tenant he is entitled to exercise his right to purchase the land.Shadi was a tenant prior to the date of the institution by Bhajan Lal of the proceeding in ejectment and he continued to remain a tenant till an order was passed by the Assistant Collector on April 30, 1964. But before that date Shadi had exercised his right to purchase the land and that right to purchase the land would not be defeated merely because on a date subsequent thereto an order in ejectment was passed against him. Shadi, had therefore, at the date when he initiated proceeding under s. 18 right to purchase the land. By the subsequent order in ejectment made against him the statutory right of Shadi was not prejudicially affected.5. We agree with the observations of Mahajan, J., in Har Sarup and Anr. v. The Financial Commissioner, Revenue Punjab ((1965) 44 Lah. Law Times 157) at p. 15 9:"But, at the time when section 18 application was filed, no order for eviction had been passed. Therefore, at that time, the relationship of landlord and tenant did exist. Mr. Daulta has not been able to point to me any provision of law which would make the eviction decree. operative from the date of the eviction application. The mere fact that the tenants had incurred the liability for eviction by reason of non-payment of rent would not put an end to the admitted relation- ship of landlord and tenant between the parties. This liability only puts an end to the aforesaid relationship when the eviction decree is passed. The eviction decree was passed long after the section 18 application. Therefore, the present petition is liable to, succeed only to have extent of section 18 application, that is, the tenants would be entitled to purchase the land. * * * *"6. But a slight modification needs to be made in the order. A proceeding for recovery of rent was commenced against Shadi. It is not clear whether the amount of compensation determined by the Assistant Collector as payable by Shadi for purchasing the land includes the rent in arrears. We declare that Shadi will be entitled to purchase the land on payment of the amount of compensation together with the amount of rent due by him. The Assistant Collector will pass appropriate order in that behalf and direct that payment be made in appropriate installments under s. 18 (4) (a). | 0[ds]We do not think that the expression "Notwithstanding anything to the contrary contained in any law, usage or contract" whittles down the right of the tenant at the date when he makes a claim to purchase the land merely because the tenancy is liable to be terminated in a proceeding then pending for an order in ejectment under s. 14-A, at the instance of the land-owner. Under the Act, the tenancy does not stand terminated merely because a proceeding in ejectment is instituted. The tenancy is determined only in the conditions, prescribed by s. 9 and in the manner provided by s. 14-A. If a tenant is in default in payment of rent the land-owner desiring to recover rent due by the tenant may apply in writing to the Assistant Collector who shall thereupon send a notice to the tenant to deposit the rent due or give proof of having paid it. If the tenant fails to pay the rent or give proof of payment, the Assistant Collector shall, after a summary inquiry, if he is of the view that the tenant has not paid or deposited-the rent, eject the tenant summarily and put the land-owner in possession of the land concerned. But so long as the Assistant Collector has not passed the order , ejecting the tenant the right of the tenant is not extinguished: he continues to remain a tenant and being a tenant he is entitled to exercise his right to purchase the land.Shadi was a tenant prior to the date of the institution by Bhajan Lal of the proceeding in ejectment and he continued to remain a tenant till an order was passed by the Assistant Collector on April 30, 1964. But before that date Shadi had exercised his right to purchase the land and that right to purchase the land would not be defeated merely because on a date subsequent thereto an order in ejectment was passed against him. Shadi, had therefore, at the date when he initiated proceeding under s. 18 right to purchase the land. By the subsequent order in ejectment made against him the statutory right of Shadi was not prejudiciallyagree with the observations of Mahajan, J., in Har Sarup and Anr. v. The Financial Commissioner, Revenue Punjab ((1965) 44 Lah. Law Times 157) at p. 15at the time when section 18 application was filed, no order for eviction had been passed. Therefore, at that time, the relationship of landlord and tenant did exist. Mr. Daulta has not been able to point to me any provision of law which would make the eviction decree. operative from the date of the eviction application. The mere fact that the tenants had incurred the liability for eviction by reason of non-payment of rent would not put an end to the admitted relation- ship of landlord and tenant between the parties. This liability only puts an end to the aforesaid relationship when the eviction decree is passed. The eviction decree was passed long after the section 18 application. Therefore, the present petition is liable to, succeed only to have extent of section 18 application, that is, the tenants would be entitled to purchase the land. * * *a slight modification needs to be made in the order. A proceeding for recovery of rent was commenced against Shadi. It is not clearwhether the amount of compensation determined by the Assistant Collector as payable by Shadi for purchasing the land includes the rent in arrears.We declare that Shadi will be entitled to purchase the land on payment of the amount of compensation together with the amount of rent due by him. The Assistant Collector will pass appropriate order in that behalf and direct that payment be made in appropriate installments under s. 18 (4) (a). | 0 | 2,078 | 686 | ### 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:
in kind, or give proof of having paid it or of the fact that he is not liable to pay the whole or part of the rent, or of the fact of the landlords refusal to receive the same or to give a receipt, within the period specified in the notice.Section 18 of the Act, insofar as it is relevant provides"(1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner-(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or(iii) * shall be entitled to purchase from the land-owner the land so held by him but not included in the reserved area of the landowner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within clause (iii) within a period of one year from the date of commencement of this Act.By virtue of S. 14-A the land-owner may obtain possession of the land on the ground of non-payment of rent by a proceeding filed before the Assistant Collector, during the subsistence of the tenancy. If the tenant has remained in continuous occupation of the land for a minimum period of six years he is entitled to purchase the land under S. 18 of the Act.4. It was urged that since S. 18 commence with a non obstante clause, viz. "Notwithstanding anything to the contrary contained in any law, usage or contract", if a proceeding in ejectment is lodged against the tenant which ultimately is allowed, the tenant cannot make a claim during the pendency of the proceeding to purchase the land. To hold otherwise, it was urged, would enable a tenant in default to defeat the claim in a suit in ejectment by commencing a proceeding for purchasing the land. We do not think that the expression "Notwithstanding anything to the contrary contained in any law, usage or contract" whittles down the right of the tenant at the date when he makes a claim to purchase the land merely because the tenancy is liable to be terminated in a proceeding then pending for an order in ejectment under s. 14-A, at the instance of the land-owner. Under the Act, the tenancy does not stand terminated merely because a proceeding in ejectment is instituted. The tenancy is determined only in the conditions, prescribed by s. 9 and in the manner provided by s. 14-A. If a tenant is in default in payment of rent the land-owner desiring to recover rent due by the tenant may apply in writing to the Assistant Collector who shall thereupon send a notice to the tenant to deposit the rent due or give proof of having paid it. If the tenant fails to pay the rent or give proof of payment, the Assistant Collector shall, after a summary inquiry, if he is of the view that the tenant has not paid or deposited-the rent, eject the tenant summarily and put the land-owner in possession of the land concerned. But so long as the Assistant Collector has not passed the order , ejecting the tenant the right of the tenant is not extinguished: he continues to remain a tenant and being a tenant he is entitled to exercise his right to purchase the land.Shadi was a tenant prior to the date of the institution by Bhajan Lal of the proceeding in ejectment and he continued to remain a tenant till an order was passed by the Assistant Collector on April 30, 1964. But before that date Shadi had exercised his right to purchase the land and that right to purchase the land would not be defeated merely because on a date subsequent thereto an order in ejectment was passed against him. Shadi, had therefore, at the date when he initiated proceeding under s. 18 right to purchase the land. By the subsequent order in ejectment made against him the statutory right of Shadi was not prejudicially affected.5. We agree with the observations of Mahajan, J., in Har Sarup and Anr. v. The Financial Commissioner, Revenue Punjab ((1965) 44 Lah. Law Times 157) at p. 15 9:"But, at the time when section 18 application was filed, no order for eviction had been passed. Therefore, at that time, the relationship of landlord and tenant did exist. Mr. Daulta has not been able to point to me any provision of law which would make the eviction decree. operative from the date of the eviction application. The mere fact that the tenants had incurred the liability for eviction by reason of non-payment of rent would not put an end to the admitted relation- ship of landlord and tenant between the parties. This liability only puts an end to the aforesaid relationship when the eviction decree is passed. The eviction decree was passed long after the section 18 application. Therefore, the present petition is liable to, succeed only to have extent of section 18 application, that is, the tenants would be entitled to purchase the land. * * * *"6. But a slight modification needs to be made in the order. A proceeding for recovery of rent was commenced against Shadi. It is not clear whether the amount of compensation determined by the Assistant Collector as payable by Shadi for purchasing the land includes the rent in arrears. We declare that Shadi will be entitled to purchase the land on payment of the amount of compensation together with the amount of rent due by him. The Assistant Collector will pass appropriate order in that behalf and direct that payment be made in appropriate installments under s. 18 (4) (a).
### Response:
0
### Explanation:
We do not think that the expression "Notwithstanding anything to the contrary contained in any law, usage or contract" whittles down the right of the tenant at the date when he makes a claim to purchase the land merely because the tenancy is liable to be terminated in a proceeding then pending for an order in ejectment under s. 14-A, at the instance of the land-owner. Under the Act, the tenancy does not stand terminated merely because a proceeding in ejectment is instituted. The tenancy is determined only in the conditions, prescribed by s. 9 and in the manner provided by s. 14-A. If a tenant is in default in payment of rent the land-owner desiring to recover rent due by the tenant may apply in writing to the Assistant Collector who shall thereupon send a notice to the tenant to deposit the rent due or give proof of having paid it. If the tenant fails to pay the rent or give proof of payment, the Assistant Collector shall, after a summary inquiry, if he is of the view that the tenant has not paid or deposited-the rent, eject the tenant summarily and put the land-owner in possession of the land concerned. But so long as the Assistant Collector has not passed the order , ejecting the tenant the right of the tenant is not extinguished: he continues to remain a tenant and being a tenant he is entitled to exercise his right to purchase the land.Shadi was a tenant prior to the date of the institution by Bhajan Lal of the proceeding in ejectment and he continued to remain a tenant till an order was passed by the Assistant Collector on April 30, 1964. But before that date Shadi had exercised his right to purchase the land and that right to purchase the land would not be defeated merely because on a date subsequent thereto an order in ejectment was passed against him. Shadi, had therefore, at the date when he initiated proceeding under s. 18 right to purchase the land. By the subsequent order in ejectment made against him the statutory right of Shadi was not prejudiciallyagree with the observations of Mahajan, J., in Har Sarup and Anr. v. The Financial Commissioner, Revenue Punjab ((1965) 44 Lah. Law Times 157) at p. 15at the time when section 18 application was filed, no order for eviction had been passed. Therefore, at that time, the relationship of landlord and tenant did exist. Mr. Daulta has not been able to point to me any provision of law which would make the eviction decree. operative from the date of the eviction application. The mere fact that the tenants had incurred the liability for eviction by reason of non-payment of rent would not put an end to the admitted relation- ship of landlord and tenant between the parties. This liability only puts an end to the aforesaid relationship when the eviction decree is passed. The eviction decree was passed long after the section 18 application. Therefore, the present petition is liable to, succeed only to have extent of section 18 application, that is, the tenants would be entitled to purchase the land. * * *a slight modification needs to be made in the order. A proceeding for recovery of rent was commenced against Shadi. It is not clearwhether the amount of compensation determined by the Assistant Collector as payable by Shadi for purchasing the land includes the rent in arrears.We declare that Shadi will be entitled to purchase the land on payment of the amount of compensation together with the amount of rent due by him. The Assistant Collector will pass appropriate order in that behalf and direct that payment be made in appropriate installments under s. 18 (4) (a).
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National Co. Ltd. Calcutta Vs. Deputy Director Of Tax Credit (Exports)Calcutta & Ors | Government may, by notification in the Official Gazette, add to, amend, vary or rescind, any scheme made under this section." 3. It was in exercise of the power conferred on the Central Government under section 280ZE read with section 280ZC that the Central Government made the Tax Credit Certificate (Exports) Scheme, 1965. The first notification dated 6th June, 1966, amended paragraph 3 of the scheme by providing that no tax credit certificate shall be granted in respect of exports where the sale proceeds were received after 5th June, 1966. This provision was relaxed by the second notification dated 8th August, 1966, by providing that in case of exports made on or before 5th June, 1966, tax credit certificate shall be granted according to the provisions of the scheme even if the sale proceeds were received after that date, but in respect of exports made after 5th June, 1966, the rate specified in column 3 of Table A shall be nil and no tax credit certificate shall be granted in respect of such exports. 4. The argument urged on behalf of the appellant was that it was not competent to the Central Government to provide in the scheme framed under section 280ZE read with section 280ZC that no tax credit certificate shall be granted in respect of exports of any goods or merchandise. The only power which, according to the appellant, the Central Government had under these two sections was to frame a scheme specifying some goods or merchandise the export of which would entitle an exporter to tax credit certificate. The appellant conceded that the Central Government was not bound to specify any particular category of goods or merchandise in the scheme framed by it but the limited contention was that some goods or merchandise must be specified in the scheme and since in the present case the scheme as amended provided that tax credit certificates shall not be granted in respect of exports of any goods or merchandise, the two notifications making this amendment in the scheme were ultra vires the power of the Central Government under sections 280ZE and 280ZC. This contention, though it found favour with the single judge of the Calcutta High Court who heard the writ petition in the first instance, is in our opinion wholly without force and cannot be sustained. A mere look at the scheme of the provisions of sections 280ZC and 280ZE is sufficient to expose the invalidity of this contentionSub-section (1) of section 280ZC undoubtedly provides that a person who exports any goods or merchandise out of India after 28th February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947, and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate not exceeding 15 per cent. of the amount of such sale proceeds. But this right conferred on an exporter is subject to the other provisions of section 280ZC and these other provisions include sub-sections (2) and (3). Sub-section (2) provides in so many terms that the goods or merchandise in respect of which a tax credit certificate shall be granted under sub-section (1) and the rate at which the amount of such certificate shall be calculated, shall be such as may be specified in the scheme. It is, thus, left to the scheme to be framed by the Central Government to specify the goods or merchandise in respect of which an exporter shall be entitled to tax credit certificate as also the rate at which the amount of such certificate shall be calculated. It is not in respect of every category of goods or merchandise that an exporter can claim to be entitled to tax credit certificate but it is only in respect of such goods or merchandise as are specified in the scheme. The policy an the principle which would guide the Central Government in selecting the goods or merchandise for this purpose are set out in sub-section (3) which provides that in specifying the goods or merchandise as also the rates, the Central Government shall have regard to the various factors set out in that sub-section. These are the factors which would influence the choice of the Central Government in selecting the goods or merchandise for the purpose of grant of tax credit certificate and also in determining the rates at which tax credit certificate should be given. Section 280ZE, sub-section (1), confers power on the Central Government to frame one or more schemes in relation to tax credit certificate to be granted under section 280ZC and under sub-section (2), such scheme or schemes may provide, inter alia, for the goods or merchandise and the rate or rates for the purposes of section 280ZC. We fail to see how any obligation can be spelt out from these provisions requiring the Central Government to frame a scheme specifying the goods or merchandise in respect of which tax credit certificate shall be granted. It would indeed be absurd to suggest that the Central Government is under an obligation to make a scheme and the requirement of the statute would be satisfied so long as the Central Government specifies some goods or merchandise in the scheme. There is no reason why the Central Government should not be entitled to say that having regard to the factors set out in sub-section (3) of section 280ZC, it does not think it desirable that tax credit certificate should be granted in respect of any goods or merchandise for the time being. Sub-section (3) of section 280ZC confers power on the Central Government in so many terms to rescind a scheme made by it and that also supports the view that the Central Government may, keeping in view the factors set out in sub-section (3) of section 280ZC, decline to make a scheme or provide in the scheme that there shall be no goods or merchandise in respect of which tax credit certificate shall be granted. 5. | 1[ds]This contention, though it found favour with the single judge of the Calcutta High Court who heard the writ petition in the first instance, is in our opinion wholly without force and cannot be sustained. A mere look at the scheme of the provisions of sections 280ZC and 280ZE is sufficient to expose the invalidity of this contentionSub-section (1) of section 280ZC undoubtedly provides that a person who exports any goods or merchandise out of India after 28th February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947, and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate not exceeding 15 per cent. of the amount of such sale proceeds. But this right conferred on an exporter is subject to the other provisions of section 280ZC and these other provisions include sub-sections (2) and (3). Sub-section (2) provides in so many terms that the goods or merchandise in respect of which a tax credit certificate shall be granted under sub-section (1) and the rate at which the amount of such certificate shall be calculated, shall be such as may be specified in the scheme. It is, thus, left to the scheme to be framed by the Central Government to specify the goods or merchandise in respect of which an exporter shall be entitled to tax credit certificate as also the rate at which the amount of such certificate shall be calculated. It is not in respect of every category of goods or merchandise that an exporter can claim to be entitled to tax credit certificate but it is only in respect of such goods or merchandise as are specified in the scheme. The policy an the principle which would guide the Central Government in selecting the goods or merchandise for this purpose are set out in sub-section (3) which provides that in specifying the goods or merchandise as also the rates, the Central Government shall have regard to the various factors set out in that sub-section. These are the factors which would influence the choice of the Central Government in selecting the goods or merchandise for the purpose of grant of tax credit certificate and also in determining the rates at which tax credit certificate should be given. Section 280ZE, sub-section (1), confers power on the Central Government to frame one or more schemes in relation to tax credit certificate to be granted under section 280ZC and under sub-section (2), such scheme or schemes may provide, inter alia, for the goods or merchandise and the rate or rates for the purposes of section 280ZC. We fail to see how any obligation can be spelt out from these provisions requiring the Central Government to frame a scheme specifying the goods or merchandise in respect of which tax credit certificate shall be granted. It would indeed be absurd to suggest that the Central Government is under an obligation to make a scheme and the requirement of the statute would be satisfied so long as the Central Government specifies some goods or merchandise in the scheme. There is no reason why the Central Government should not be entitled to say that having regard to the factors set out in sub-section (3) of section 280ZC, it does not think it desirable that tax credit certificate should be granted in respect of any goods or merchandise for the time being. Sub-section (3) of section 280ZC confers power on the Central Government in so many terms to rescind a scheme made by it and that also supports the view that the Central Government may, keeping in view the factors set out in sub-section (3) of section 280ZC, decline to make a scheme or provide in the scheme that there shall be no goods or merchandise in respect of which tax credit certificate shall be granted. | 1 | 2,694 | 707 | ### 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:
Government may, by notification in the Official Gazette, add to, amend, vary or rescind, any scheme made under this section." 3. It was in exercise of the power conferred on the Central Government under section 280ZE read with section 280ZC that the Central Government made the Tax Credit Certificate (Exports) Scheme, 1965. The first notification dated 6th June, 1966, amended paragraph 3 of the scheme by providing that no tax credit certificate shall be granted in respect of exports where the sale proceeds were received after 5th June, 1966. This provision was relaxed by the second notification dated 8th August, 1966, by providing that in case of exports made on or before 5th June, 1966, tax credit certificate shall be granted according to the provisions of the scheme even if the sale proceeds were received after that date, but in respect of exports made after 5th June, 1966, the rate specified in column 3 of Table A shall be nil and no tax credit certificate shall be granted in respect of such exports. 4. The argument urged on behalf of the appellant was that it was not competent to the Central Government to provide in the scheme framed under section 280ZE read with section 280ZC that no tax credit certificate shall be granted in respect of exports of any goods or merchandise. The only power which, according to the appellant, the Central Government had under these two sections was to frame a scheme specifying some goods or merchandise the export of which would entitle an exporter to tax credit certificate. The appellant conceded that the Central Government was not bound to specify any particular category of goods or merchandise in the scheme framed by it but the limited contention was that some goods or merchandise must be specified in the scheme and since in the present case the scheme as amended provided that tax credit certificates shall not be granted in respect of exports of any goods or merchandise, the two notifications making this amendment in the scheme were ultra vires the power of the Central Government under sections 280ZE and 280ZC. This contention, though it found favour with the single judge of the Calcutta High Court who heard the writ petition in the first instance, is in our opinion wholly without force and cannot be sustained. A mere look at the scheme of the provisions of sections 280ZC and 280ZE is sufficient to expose the invalidity of this contentionSub-section (1) of section 280ZC undoubtedly provides that a person who exports any goods or merchandise out of India after 28th February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947, and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate not exceeding 15 per cent. of the amount of such sale proceeds. But this right conferred on an exporter is subject to the other provisions of section 280ZC and these other provisions include sub-sections (2) and (3). Sub-section (2) provides in so many terms that the goods or merchandise in respect of which a tax credit certificate shall be granted under sub-section (1) and the rate at which the amount of such certificate shall be calculated, shall be such as may be specified in the scheme. It is, thus, left to the scheme to be framed by the Central Government to specify the goods or merchandise in respect of which an exporter shall be entitled to tax credit certificate as also the rate at which the amount of such certificate shall be calculated. It is not in respect of every category of goods or merchandise that an exporter can claim to be entitled to tax credit certificate but it is only in respect of such goods or merchandise as are specified in the scheme. The policy an the principle which would guide the Central Government in selecting the goods or merchandise for this purpose are set out in sub-section (3) which provides that in specifying the goods or merchandise as also the rates, the Central Government shall have regard to the various factors set out in that sub-section. These are the factors which would influence the choice of the Central Government in selecting the goods or merchandise for the purpose of grant of tax credit certificate and also in determining the rates at which tax credit certificate should be given. Section 280ZE, sub-section (1), confers power on the Central Government to frame one or more schemes in relation to tax credit certificate to be granted under section 280ZC and under sub-section (2), such scheme or schemes may provide, inter alia, for the goods or merchandise and the rate or rates for the purposes of section 280ZC. We fail to see how any obligation can be spelt out from these provisions requiring the Central Government to frame a scheme specifying the goods or merchandise in respect of which tax credit certificate shall be granted. It would indeed be absurd to suggest that the Central Government is under an obligation to make a scheme and the requirement of the statute would be satisfied so long as the Central Government specifies some goods or merchandise in the scheme. There is no reason why the Central Government should not be entitled to say that having regard to the factors set out in sub-section (3) of section 280ZC, it does not think it desirable that tax credit certificate should be granted in respect of any goods or merchandise for the time being. Sub-section (3) of section 280ZC confers power on the Central Government in so many terms to rescind a scheme made by it and that also supports the view that the Central Government may, keeping in view the factors set out in sub-section (3) of section 280ZC, decline to make a scheme or provide in the scheme that there shall be no goods or merchandise in respect of which tax credit certificate shall be granted. 5.
### Response:
1
### Explanation:
This contention, though it found favour with the single judge of the Calcutta High Court who heard the writ petition in the first instance, is in our opinion wholly without force and cannot be sustained. A mere look at the scheme of the provisions of sections 280ZC and 280ZE is sufficient to expose the invalidity of this contentionSub-section (1) of section 280ZC undoubtedly provides that a person who exports any goods or merchandise out of India after 28th February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947, and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate not exceeding 15 per cent. of the amount of such sale proceeds. But this right conferred on an exporter is subject to the other provisions of section 280ZC and these other provisions include sub-sections (2) and (3). Sub-section (2) provides in so many terms that the goods or merchandise in respect of which a tax credit certificate shall be granted under sub-section (1) and the rate at which the amount of such certificate shall be calculated, shall be such as may be specified in the scheme. It is, thus, left to the scheme to be framed by the Central Government to specify the goods or merchandise in respect of which an exporter shall be entitled to tax credit certificate as also the rate at which the amount of such certificate shall be calculated. It is not in respect of every category of goods or merchandise that an exporter can claim to be entitled to tax credit certificate but it is only in respect of such goods or merchandise as are specified in the scheme. The policy an the principle which would guide the Central Government in selecting the goods or merchandise for this purpose are set out in sub-section (3) which provides that in specifying the goods or merchandise as also the rates, the Central Government shall have regard to the various factors set out in that sub-section. These are the factors which would influence the choice of the Central Government in selecting the goods or merchandise for the purpose of grant of tax credit certificate and also in determining the rates at which tax credit certificate should be given. Section 280ZE, sub-section (1), confers power on the Central Government to frame one or more schemes in relation to tax credit certificate to be granted under section 280ZC and under sub-section (2), such scheme or schemes may provide, inter alia, for the goods or merchandise and the rate or rates for the purposes of section 280ZC. We fail to see how any obligation can be spelt out from these provisions requiring the Central Government to frame a scheme specifying the goods or merchandise in respect of which tax credit certificate shall be granted. It would indeed be absurd to suggest that the Central Government is under an obligation to make a scheme and the requirement of the statute would be satisfied so long as the Central Government specifies some goods or merchandise in the scheme. There is no reason why the Central Government should not be entitled to say that having regard to the factors set out in sub-section (3) of section 280ZC, it does not think it desirable that tax credit certificate should be granted in respect of any goods or merchandise for the time being. Sub-section (3) of section 280ZC confers power on the Central Government in so many terms to rescind a scheme made by it and that also supports the view that the Central Government may, keeping in view the factors set out in sub-section (3) of section 280ZC, decline to make a scheme or provide in the scheme that there shall be no goods or merchandise in respect of which tax credit certificate shall be granted.
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Competent Authority Vs. Barangore Jute Factory | land in the favour of the Central Government. 9. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under S.3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under S.3G has been deposited under sub-s.(1) of S.3H. In the present case in view of an order dated 3rd April,2002 passed by the High Court final compensation could not be determined by the competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under S.3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one days notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned counsel for the acquiring authority submits that possession was taken on basis of oral observations of the court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March,2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI. 10. At this stage we would like to note that the learned counsel appearing for the writ petitioners made reference to a publication in the nature of a brochure issued by the West Bengal Government wherein it is mentioned that motels / shops / petrol pumps etc. will also come up in the area where the acquired land is situate. On this basis it was sought to be argued that such use of the acquired land would be contrary to the use mentioned in S.3A of the Act and, therefore, is not permissible. There was lot of controversy on this aspect between the parties particularly, on the ground that this plea was being taken at this belated stage when the respondents had no opportunity to give a proper reply thereto. We have mentioned this only for the reason that the issue has come up during the course of hearing. We do not consider it necessary to go into this aspect, in view of the fact that we have held in this judgment that the basic acquisition notification itself is not in accordance with law. 11. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. 12. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. 13. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the land owners are adequately compensated. Reference may be made to: (a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and others (1992 (1)SCC 328 ) (b) Gauri Shankar Gaur and Others. v. State of UP and Others. (1994 (1) SCC 92 ) (c) Haji Saeed Khan and Others. v. State of UP and Others. (2001 (9) SCC 513 ) In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19th February, 2003 | 0[ds]5. So far as the question whether the impugned Notification meets the requirement of S.3A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of land in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law. While dealing with the question of brief description of land in the acquisition notifications, reference was made to some judgments of this Court where acquisition Notifications under S.4 of the Land Acquisition Act had come up for consideration on account of challenge being leveled on ground of vagueness of the Notifications. In most of these cases, Plan of the area under acquisition was made part of the notifications to show that the requirement of description of land was met. This lead us to inquire whether there was any site plan forming part of the impugned NotificationWe are inclined to accept that there was no Plan accompanying the impugned Notification. During the course of hearing we were shown a Plan which we are unable to link with the impugned Notification. This was a 1996 PWD Plan. The PWD is a department of the State Government. The impugned Notification is by the Central Government. The NHAI is established under a Central Act. The Competent Authority under S.3 of the Act is appointed by the Central Government. Therefore, this State Government Plan of 1996 (the impugned Notification is of 1998) is of no assistance. The impugned judgment of the High Court emphasises the need for a Plan. It is clear from the judgment of the High Court that no Plan was produced before it. The absence of any reference to a Plan in the impugned Notification and in fact non availability of any Plan linked to the Notification, fortifies the argument that the description of the land under acquisition in the impugned Notification fails to meet the legal requirement of a brief description of the land which renders the Notification invalid7. The absence of plan also renders the right to file objections under S.3C(1) nugatory. In the absence of a Plan, it is impossible to ascertain or know which part of acquired land was to be used and in what manner. Without this knowledge no objections regarding use of land could be filed. Since the objection regarding use of the land had been given up by the writ petitioners, we need not go any further in this aspect. We would, however, like to add that unlike S.5A of the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under S.4 of the said Act, S.3C(1) of the National Highways Act gives a very limited right to object. The objection can be only to the use of the land under acquisition for purposes other than those under sub-s.3A(1). The Act confers no right to object to acquisition as such. This answers the argument advanced by the learned counsel for the NHAI that failure to file objections disentitles Writ Petitioners to object to the acquisition. The Act confers no general right to object, therefore, failure to object becomes irrelevant. The learned counsel relied on the judgment of this court in Delhi Administration vs. Gurdip Singh Uban and Others (1999 (7) SCC 44 ). In our view, this judgment has no application in the facts of the present case where right to object is a very limited right. The case cited is a case under the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under S.5A. Failure to exercise that right could be said to be acquiescence. The National Highways Act confers no such right. Under this Act there is no right to object to acquisition of land except on the question of its user. Therefore, the present objection has to be decided independently of the right to file objections. De hors the right to file objection, the validity of the Notification has to be considered. Failure to file objection to the notification under S.3C, therefore, cannot non suit the Writ Petitioners in this case. Thelearned counsel supporting the acquisition submitted that the delay in filing the Writ Petition is fatal to the case of landowners.It is true that 11th June, 1998 Notification was challenged only in September, 2001 by filing the Writ Petition. But if the Notification violates the very statute from which it derives its force, will delay in challenging it clothe it with legitimacy? The Act requires the Notification to be issued in a particular manner with brief particulars of land being acquired. The Notification in this case fails to meet this requirement. We have held it to be bad in law. It has no legs to stand. The conduct of the opposite party cannot be used to make it stand. Moreover, the Writ Petitioners have explained the reasons for the delay in filing the Writ Petition. The Company which owns the lands had been deregistered. It is a Company registered in the U.K. It had to be revived. Revival came in mid 2001 whereafter the action was taken. Thus we find no merit in the argument about delay in challenging the Notification rendering the challenge liable to be rejected8. Coming to the point regarding filing of claim for compensation on behalf of the Company by its General Manager with complete details of the land under acquisition, we must note that at the relevant time in 1998 and thereafter till 2001, the Writ Petitioner Company had no existence. On account of demands of workers of the factory and to meet other statutory demands, a committee was appointed by the High Court in the winding up proceedings pending before it to run the factory. The claim for compensation was filed by somebody as the General Manager of the Company. He had no authority to do so. The committee had to manage only the factory and had nothing to do with ownership issues. So far as details of land under acquisition contained in the claim is concerned, it is based on material contained in the impugned Notification and the Appendix. Filing of such a claim by somebody who had no authority to do so, cannot deprive the owners of their right to challenge the acquisition of the lands owned by the Company. Therefore, neither delay in filing the Writ Petition nor filing of claim for compensation can stand in the way of the Writ Petitioners in seeking relief in these proceedings. About the argument based on vesting of the land in the Central Government, it is to be seen that if the initial Notification is bad, all steps taken in pursuance thereof will fall with it. Vesting under S.3D(2) arises on a declaration by the Central Government under S.3D(1).The declaration is the result of disposal of objections under S.3C. Each step is a consequence of earlier step and in that sense all the steps are linked to initial Notification for acquisition under S.3A(1) and (2). This initial Notification has been held to be not in accordance with law. When the foundation goes rest of the edifice falls. The invalid Notification under S.3(A) renders all subsequent steps invalid. Therefore, vesting of land in the Central Government in the present case cannot be said to be lawful and it does not advance the case of the Competent Authority or the NHAI. Taking possession of the land is yet another step in the same sequence and is again subject to the initial Notification being held valid. The initial Notification having been invalidated, there can be no legal or valid vesting of land in the favour of the Central Government9. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under S.3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under S.3G has been deposited under sub-s.(1) of S.3H. In the present case in view of an order dated 3rd April,2002 passed by the High Court final compensation could not be determined by the competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under S.3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one days notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned counsel for the acquiring authority submits that possession was taken on basis of oral observations of the court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March,2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI11. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the landowners.Quashing of the notification at this stage will give rise to several difficulties and practical problems12. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available. | 0 | 4,975 | 2,320 | ### Instruction:
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land in the favour of the Central Government. 9. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under S.3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under S.3G has been deposited under sub-s.(1) of S.3H. In the present case in view of an order dated 3rd April,2002 passed by the High Court final compensation could not be determined by the competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under S.3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one days notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned counsel for the acquiring authority submits that possession was taken on basis of oral observations of the court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March,2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI. 10. At this stage we would like to note that the learned counsel appearing for the writ petitioners made reference to a publication in the nature of a brochure issued by the West Bengal Government wherein it is mentioned that motels / shops / petrol pumps etc. will also come up in the area where the acquired land is situate. On this basis it was sought to be argued that such use of the acquired land would be contrary to the use mentioned in S.3A of the Act and, therefore, is not permissible. There was lot of controversy on this aspect between the parties particularly, on the ground that this plea was being taken at this belated stage when the respondents had no opportunity to give a proper reply thereto. We have mentioned this only for the reason that the issue has come up during the course of hearing. We do not consider it necessary to go into this aspect, in view of the fact that we have held in this judgment that the basic acquisition notification itself is not in accordance with law. 11. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. 12. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. 13. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the land owners are adequately compensated. Reference may be made to: (a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and others (1992 (1)SCC 328 ) (b) Gauri Shankar Gaur and Others. v. State of UP and Others. (1994 (1) SCC 92 ) (c) Haji Saeed Khan and Others. v. State of UP and Others. (2001 (9) SCC 513 ) In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19th February, 2003
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demands, a committee was appointed by the High Court in the winding up proceedings pending before it to run the factory. The claim for compensation was filed by somebody as the General Manager of the Company. He had no authority to do so. The committee had to manage only the factory and had nothing to do with ownership issues. So far as details of land under acquisition contained in the claim is concerned, it is based on material contained in the impugned Notification and the Appendix. Filing of such a claim by somebody who had no authority to do so, cannot deprive the owners of their right to challenge the acquisition of the lands owned by the Company. Therefore, neither delay in filing the Writ Petition nor filing of claim for compensation can stand in the way of the Writ Petitioners in seeking relief in these proceedings. About the argument based on vesting of the land in the Central Government, it is to be seen that if the initial Notification is bad, all steps taken in pursuance thereof will fall with it. Vesting under S.3D(2) arises on a declaration by the Central Government under S.3D(1).The declaration is the result of disposal of objections under S.3C. Each step is a consequence of earlier step and in that sense all the steps are linked to initial Notification for acquisition under S.3A(1) and (2). This initial Notification has been held to be not in accordance with law. When the foundation goes rest of the edifice falls. The invalid Notification under S.3(A) renders all subsequent steps invalid. Therefore, vesting of land in the Central Government in the present case cannot be said to be lawful and it does not advance the case of the Competent Authority or the NHAI. Taking possession of the land is yet another step in the same sequence and is again subject to the initial Notification being held valid. The initial Notification having been invalidated, there can be no legal or valid vesting of land in the favour of the Central Government9. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under S.3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under S.3G has been deposited under sub-s.(1) of S.3H. In the present case in view of an order dated 3rd April,2002 passed by the High Court final compensation could not be determined by the competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under S.3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one days notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned counsel for the acquiring authority submits that possession was taken on basis of oral observations of the court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March,2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI11. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the landowners.Quashing of the notification at this stage will give rise to several difficulties and practical problems12. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available.
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Government Of A.P. Vs. P. Laxmi Devi | to the political processes and reasonably uninhibited freedom to argue and discuss (limited only by imminently impending danger to the state itself) is in fact an integral part of, although antecedent to, the formal legislative processes of democracy. Hence to uphold the restrictions on freedom of thought and communication and access to the political processes which may be placed in effect by a temporary majority would be actually to reduce the integrity of the processes of transforming that transient majority into a minority - a processes essential to the very concept of democracy. Professor Chafee years ago remarked the fact that the Justices, including Holmes, who tended to uphold wide legislative control over business were often the very same men who tended to invalidate wide legislative control over discussion. "These Justices", said Chafee, "know that statutes, to be sound and effective, must be preceded by abundant printed and oral controversy. Discussion is really legislation in the soft. Drastic restrictions on free discussion are similar to rigid constitutional limits on lawmaking". 83. In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. 84. It may be mentioned that during feudal times citizens had no civil rights. There was no freedom of speech, no equality, no freedom to practice ones own religion, no liberty etc. The Great English Revolution of 1688 emphasized the importance of liberty and the Great French Revolution of 1789 underscored equality and freedom of religion. The Great American Revolution championed all these rights. Our founding fathers borrowed these lessons from history and provided for the fundamental rights in our Constitution to protect the citizens liberties not only against the executive but even against the legislature, if need be. 85. It may be noted that there were no fundamental rights in the Government of India Act, 1935. The Founding Fathers of our Constitution, who were also freedom fighters for Indias Independence, knew the value of these rights, and that is why they incorporated them in the Constitution. 86. It must be understood that while a statute is made by the peoples elected representatives, the Constitution too is a document which has been created by the people (as is evident from the Preamble). The Courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or legislature as unconstitutional. 87. In Terminiello vs. Chicago 337 US 1 (1949), the U.S. Supreme Court observed that free speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, even stirs people to anger. 88. In Bridges vs. California 314 US 252 (1941) the U.S. Supreme Court observed that freedom of the press must be allowed the broadest scope compatible with the supremacy of order. 89. In Wood vs. Georgia 370 U.S. 375(1962), the U.S. Supreme Court observed that Judges may use their contempt power to punish disorder in the courtroom, but not to penalize any editor who assails the performance of the Court in print. 90. In Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning observed: "A mans liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground." 91. The above observation has been quoted with approval by a Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India, AIR 1978 SC 597 (vide para 99). 92. Why is it that the Courts both in India and in America have taken an activist approach in upholding the civil liberties and rights of the citizens? In our opinion, this is because freedom and liberty is essential for progress, both economic and social. Without freedom to speak, freedom to write, freedom to think, freedom to experiment, freedom to criticize (including criticism of the Government) and freedom to dissent there can be no progress. 93. Scientific ideas initially were often condemned because they were regarded as opposed to religious dogma. For instance, Charles Darwins theory or Copernicus theory at one time were condemned because they were regarded as opposed to the Bible. It was only by freedom of speech, freedom to think and freedom to dissent that human progress was possible. And it is for this reason that our founding fathers in their wisdom provided for the fundamental rights in Part III of the Constitution. It is the solemn duty of the Courts to uphold the civil rights and liberties of the citizens against executive or legislative invasion, and the Court cannot sit quiet in this situation, but must play an activist role in upholding civil liberties and the fundamental rights in Part III, vide Maneka Gandhi vs. Union of India, AIR 1978 SC 597 , Joginder Kumar vs. State of U.P., AIR 1994 SC 1349 , D. K. Basu vs. State of West Bengal, AIR 1997 SC 610 , etc. 94. In view of the fact that the impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, we are of the opinion that the said amendment, being an economic measure, cannot be said to be unconstitutional. | 1[ds]17. In our opinion, a registering officer under the Registration Act (in this case the Sub-Registrar) is certainly a person who is in charge of a public office. Section 33(3) applies only when there is some doubt whether a person holds a public office or not. In our opinion, there can be no doubt that a Sub-Registrar holds a public office. Hence, he cannot return such a document to the party once he finds that it is not properly stamped, and he must impound it.18. In our opinion, there is no violation of Articles 14, 19 or any other provision of the Constitution by the enactment of Section 47A as amended by the A.P Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and for quick realization of the stamp duty. Hence it is well within the power of the State legislature vide Entry 63 of List II read with Entry 44 of List III of the Seventh Schedule to the Constitution.19. It is well settled that stamp duty is a tax, and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar AIR 1965 SC 1216 . If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute. Hence the High Court fell in error in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which will be caused to a party by the impugned amendment of 1998.In view of the above, we are clearly of the opinion that Section 47A of the Indian Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct.In our opinion in this situation it is always open to a party to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to Section 47A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47A of the Indian Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi vs. Union of India AIR 1978 SC 597. Hence, the party is not remedy-less in this situation.30. However, this would not mean that the proviso to Section 47A becomes unconstitutional. There is always a difference between a statute and the action taken under a statute. The statute may be valid and constitutional, but the action taken under it may not be valid. Hence, merely because it is possible that the order of the registering authority under the proviso to Section 47A is arbitrary and illegal, that does not mean that the proviso to Section 47A is also unconstitutional. We must always keep this in mind when adjudicating on the constitutionality of a statute.31. Since we have dealt with the question about constitutionality of Section 47A of the Stamp Act, we think it necessary to clarify the scope of judicial review of statutes, since Courts often are faced with a difficulty in determining whether a statute is constitutionally valid or not. We are, therefore, going a little deep into the theory of judicial review of statutes, as that will give some guidance to the High Courts in future.If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non enforceable).35. The first decision laying down the principle that the Court has power to declare a Statute unconstitutional was the well-known decision of the US Supreme Court in Marburyvs. Madison 5 U.S. (1Cranch) 137(1803). This principle has been followed thereafter in most countries, includingaccording to the above reasoning, the power in the Courts to declare a Statute unconstitutional has to be accepted, the question which then arises is how and when should such power be exercised.36. This is a very important question because invalidating an Act of the Legislature is a grave step and should never be lightly taken.The Court is, therefore, faced with a grave problem. On the one hand, it is well settled since Marbury vs. Madison (supra) that the Constitution is the fundamental law of the land and must prevail over the ordinary statute in case of conflict, on the other hand the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.We have observed above that while the Court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection. This requires clarification, since, sometimes Courts are perplexed as to whether they should declare a statute to be constitutional or unconstitutional.Thus, according to Prof. Thayer, a Court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question. In other words, the Court can declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly unconstitutional, and there is no way of avoiding such decision. The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the State - the legislature, the executive and the judiciary, must respect each other and must not ordinarily encroach into each others domain. Also the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people, and in a democracy this will is not to be lightly frustrated or obstructed.42. Apart from the above, Thayer also warned that exercise of the power of judicial review "is always attended with a serious evil", namely, that of depriving people of "the political experience and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors" and with the tendency "to dwarf the political capacity of the people and to deaden its sense of moral responsibility".In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways, e.g. if a State legislature makes a law which only the Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Mark Netto vs. Government of Kerala and others AIR 1979 SC 83 (para 6). Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.In our opinion judges must maintain judicial self-restraint while exercising the power of judicial review of legislation. "In view of the complexities of modern society", wrote Justice Frankfurter, while Professor of Law at Harvard University, "and the restricted scope of any mans experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution.In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the judges personal preferences. The Court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step.In our opinion, the Court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality.The Court must, therefore, make every effort to uphold the constitutional validity of a Statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the Court declare a statute to be unconstitutional.However, though while considering economic or most other legislation the Court gives great latitude to the legislature when adjudging its constitutionality, a very different approach has to be adopted by the Court when the question of civil liberties and the fundamental rights under Part III of the Constitution arise.74. In paragraph 8 of the Constitution Bench decision in R.K. Gargs case (supra) it was observed (as quoted above) that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, freedom of religion etc. Thus, the Constitution Bench decision in R.K Gargs case (supra) is an authority for the proposition which has been stated herein, namely, when a law of the legislature encroaches on the civil rights and civil liberties of the people mentioned in Part III of the Constitution (the fundamental rights), such as freedom of speech, freedom of movement, equality before law, liberty, freedom of religion etc, the Court will not grant such latitude to the legislature as in the case of economic measures, but will carefully scrutinize whether the legislation on these subjects is violative of the rights and liberties of the citizens, and its approach must be to uphold those rights and liberties, for which it may sometimes even have to declare a statute to be unconstitutional.However, we find no paradox at all. As regards economic and other regulatory legislation judicial restraint must be observed by the Court and greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the Court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialization when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the Court to encroach into the domain of the executive or legislative and try to enforce its own views and perceptions.In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789.In view of the fact that the impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, we are of the opinion that the said amendment, being an economic measure, cannot be said to be unconstitutional. | 1 | 13,114 | 2,315 | ### Instruction:
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to the political processes and reasonably uninhibited freedom to argue and discuss (limited only by imminently impending danger to the state itself) is in fact an integral part of, although antecedent to, the formal legislative processes of democracy. Hence to uphold the restrictions on freedom of thought and communication and access to the political processes which may be placed in effect by a temporary majority would be actually to reduce the integrity of the processes of transforming that transient majority into a minority - a processes essential to the very concept of democracy. Professor Chafee years ago remarked the fact that the Justices, including Holmes, who tended to uphold wide legislative control over business were often the very same men who tended to invalidate wide legislative control over discussion. "These Justices", said Chafee, "know that statutes, to be sound and effective, must be preceded by abundant printed and oral controversy. Discussion is really legislation in the soft. Drastic restrictions on free discussion are similar to rigid constitutional limits on lawmaking". 83. In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. 84. It may be mentioned that during feudal times citizens had no civil rights. There was no freedom of speech, no equality, no freedom to practice ones own religion, no liberty etc. The Great English Revolution of 1688 emphasized the importance of liberty and the Great French Revolution of 1789 underscored equality and freedom of religion. The Great American Revolution championed all these rights. Our founding fathers borrowed these lessons from history and provided for the fundamental rights in our Constitution to protect the citizens liberties not only against the executive but even against the legislature, if need be. 85. It may be noted that there were no fundamental rights in the Government of India Act, 1935. The Founding Fathers of our Constitution, who were also freedom fighters for Indias Independence, knew the value of these rights, and that is why they incorporated them in the Constitution. 86. It must be understood that while a statute is made by the peoples elected representatives, the Constitution too is a document which has been created by the people (as is evident from the Preamble). The Courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or legislature as unconstitutional. 87. In Terminiello vs. Chicago 337 US 1 (1949), the U.S. Supreme Court observed that free speech may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, even stirs people to anger. 88. In Bridges vs. California 314 US 252 (1941) the U.S. Supreme Court observed that freedom of the press must be allowed the broadest scope compatible with the supremacy of order. 89. In Wood vs. Georgia 370 U.S. 375(1962), the U.S. Supreme Court observed that Judges may use their contempt power to punish disorder in the courtroom, but not to penalize any editor who assails the performance of the Court in print. 90. In Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning observed: "A mans liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground." 91. The above observation has been quoted with approval by a Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India, AIR 1978 SC 597 (vide para 99). 92. Why is it that the Courts both in India and in America have taken an activist approach in upholding the civil liberties and rights of the citizens? In our opinion, this is because freedom and liberty is essential for progress, both economic and social. Without freedom to speak, freedom to write, freedom to think, freedom to experiment, freedom to criticize (including criticism of the Government) and freedom to dissent there can be no progress. 93. Scientific ideas initially were often condemned because they were regarded as opposed to religious dogma. For instance, Charles Darwins theory or Copernicus theory at one time were condemned because they were regarded as opposed to the Bible. It was only by freedom of speech, freedom to think and freedom to dissent that human progress was possible. And it is for this reason that our founding fathers in their wisdom provided for the fundamental rights in Part III of the Constitution. It is the solemn duty of the Courts to uphold the civil rights and liberties of the citizens against executive or legislative invasion, and the Court cannot sit quiet in this situation, but must play an activist role in upholding civil liberties and the fundamental rights in Part III, vide Maneka Gandhi vs. Union of India, AIR 1978 SC 597 , Joginder Kumar vs. State of U.P., AIR 1994 SC 1349 , D. K. Basu vs. State of West Bengal, AIR 1997 SC 610 , etc. 94. In view of the fact that the impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, we are of the opinion that the said amendment, being an economic measure, cannot be said to be unconstitutional.
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a serious evil", namely, that of depriving people of "the political experience and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors" and with the tendency "to dwarf the political capacity of the people and to deaden its sense of moral responsibility".In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways, e.g. if a State legislature makes a law which only the Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Mark Netto vs. Government of Kerala and others AIR 1979 SC 83 (para 6). Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.In our opinion judges must maintain judicial self-restraint while exercising the power of judicial review of legislation. "In view of the complexities of modern society", wrote Justice Frankfurter, while Professor of Law at Harvard University, "and the restricted scope of any mans experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution.In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the judges personal preferences. The Court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step.In our opinion, the Court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality.The Court must, therefore, make every effort to uphold the constitutional validity of a Statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the Court declare a statute to be unconstitutional.However, though while considering economic or most other legislation the Court gives great latitude to the legislature when adjudging its constitutionality, a very different approach has to be adopted by the Court when the question of civil liberties and the fundamental rights under Part III of the Constitution arise.74. In paragraph 8 of the Constitution Bench decision in R.K. Gargs case (supra) it was observed (as quoted above) that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, freedom of religion etc. Thus, the Constitution Bench decision in R.K Gargs case (supra) is an authority for the proposition which has been stated herein, namely, when a law of the legislature encroaches on the civil rights and civil liberties of the people mentioned in Part III of the Constitution (the fundamental rights), such as freedom of speech, freedom of movement, equality before law, liberty, freedom of religion etc, the Court will not grant such latitude to the legislature as in the case of economic measures, but will carefully scrutinize whether the legislation on these subjects is violative of the rights and liberties of the citizens, and its approach must be to uphold those rights and liberties, for which it may sometimes even have to declare a statute to be unconstitutional.However, we find no paradox at all. As regards economic and other regulatory legislation judicial restraint must be observed by the Court and greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the Court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialization when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the Court to encroach into the domain of the executive or legislative and try to enforce its own views and perceptions.In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789.In view of the fact that the impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, we are of the opinion that the said amendment, being an economic measure, cannot be said to be unconstitutional.
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Deutsche Bank Vs. S.P. Kala and Another | than the company under liquidation. In fact, the judgment of the Mysore High Court in G. S. Setty and Sons v. Yellamma Cotton, Woollen and silk Mills Co. [1970] 40 Comp Cas 10 shows that, relying upon the observations in the judgment of the Madras High Court in the case of Purushottam and Co. v. Subhodhaya Publications Ltd. [1955] 25 Comp Cas 49, it has held that when there are defendants in a suit other than the company in liquidation whose rights are affected, leave should be normally granted to proceed with the suit subject to the condition that the decree, if any, obtained should not be enforced against the company under liquidation without leave of the company court. It is clear from the above judgments that the suits where there are defendants other than the company under liquidation are contemplated under section 446 (1) of the Companies Act.( 10 ) IF the suit that is already filed against the company along with other defendants, where particularly the company under liquidation is the principal defendant is under the control of the company court in the sense that, for filing of the suit or when the suit is already filed, for proceeding with it leave of the company court is necessary which can be granted subject to the terms or conditions which it may impose, it is difficult to see why such a suit where there are defendant other than the company under liquidation is not contemplated under sub-sections (2)and (3) of section 446 of the Companies Act, particular when the company under liquidation is a principal defendant in such a suit and the plaintiff insist upon execution of its decree against the company under liquidation also. In out view, therefore, in appropriate cases, in its discretion, the company court can itself entertain and dispose of a suit in which there are defendants other than the company under liquidation. ( 11 ) IT may be seen that, when, in such a suit, an order or a decree is passed by the company judge against the company under liquidation as well as the other defendants who are parties to the suits, it is open to the company court to pass appropriate orders to enable the plaintiff to execute the decree against the other defendants. It has to be seen that, as provided in section 634 of the Companies Act, any order made by the court under the Companies Act can be enforced in the same manners as a decree made by the court in a suit pending therein. The order or the decree passed by the learned company judge in a suit which he has entertained and disposed of can, as per his discretion, be executed against the other defendants. We do not, therefore, find any force in the submission made on behalf of the appellant that, in a suit where the company under liquidation is the principal defendant in the sense that it is the principal debtor, the suit cannot be entertained and disposed of by the company court only because the guarantor is also an additional defendant in the suit. If such a suit can be entertained and disposed of by the company court, then it has fill powers to pass the decree against the guarantor also which can be enforced against him under section 634 of the Companies Act. ( 12 ) LEARNED counsel for the appellant has then relied upon the judgment of this court in the case of Balkrishna Mahadeo Vartak v. Indian Association Chemical Industries Ltd. [1958] 28 Comp cas 179 in which it is held that leave to file suits should also be granted where the issue is one that cannot be decided in the winding-up proceedings. On the basis of the above judgment, it is urged that the question of liability of the guarantor cannot be decided in winding-up proceedings, and, therefore, the company judge, in the instant case, would not have jurisdiction to dispose of the same. There is no merit in the above submission because what the learned counsel company judge is deciding is a suit which he has entertained and which he is empowered to entertain under section 446 (2) of the Companies Act. It is a different case when the issue is such which can be exclusively decided by a special court or tribunal constituted for a particular purpose such as a rent court under the Rent Act, etc. The question of liability of a guarantor is a question which any court of general jurisdiction can decide. Moreover, the above judgment is rendered prior to the amendment of section 446 (2) of the Companies Act when, for the first time, the provision was introduced enabling the company court to entertain and dispose of the suit which is by or against the company. The above contention raised or behalf of the appellant must, therefore, fail.( 13 ) LEARNED counsel for the appellant has relied upon the decision of the Mysore High Court in the case cited supra as also the decision of the Madras High Court cited supra in support of his submission that in a suit where there are other defendant in addition to the company under liquidation, the provision of sub-section (2) of section 446 of the Companies Act are not applicable. No such proposition is considered in the said cases which are under section 446 (1) of the Companies Act. Perusal of the said cases shows that the learned company judge in the said cases had refused to grant leave to the plaintiffs in the said suits to file the suits in the courts having jurisdiction to try the same. In appeal, reversing the said orders, the above High Courts have held that where the company is a necessary party to the suits and where there are other defendants, courts should generally grant leave to file or to continue such suits subject to the condition that the decree in such suit may not be enforced against such company. | 0[ds]( 5 ) IT is not necessary for us to consider the larger question whether, in each and every suit where in addition to the company there are other defendants, such a suit can be entertained or disposed of by the company court. In the instant case, it is not in dispute that the company is the principal debtor because it is the company which had taken loan from theThe other defendant against whom relief is sought is a guarantor. When specifically asked, learned counsel for the appellant has made it clear to us that the relief is sought and the decree is claimed both against the company and the guarantor. In such a case where the company is the principle debtor and the decree is claimed in the suit against it, the question is whether such a suit can be entertained or disposed of by the company court. ( 6 ) CONSTRUING section 446 (2) of the Companies Act it may be seen that, in its present form, it was substituted by the Companies (Amendment) Act, 1960, with a view to subserve the object of the winding up of a company. The winding up a company by a court is to facilitate the protection and realisation of its assets with a view to ensure an equitable distribution thereof among those entitled and to prevent the administration from being embarrassed by a general scramble among the creditors and others. Consequently, once the court has taken the assets of a company under its control or has passed an order for its being wound up, it will not be proper to allow proceedings to be started or continued against the company and embarrass the administration of its affairs. The present section is intended to safeguard the assets of a company inagainst wasteful or expensive litigation in regard to matters capable of being determined expeditiously and cheaply by thecourt itself. (9 ) LAYING emphasis upon the expression by or against the company occurring in clauses (a) and (b) of(2) and also in(3) of section 446 of the Companies Act, the submission on behalf of the appellant is that the provisions of(2) and (3) of section 446 are applicable to a suit where either the company is the plaintiff or where the company alone is the defendant since, according to learned counsel appearing for the appellant, there are no words to the effect showing that the suit against the company and other defendants can also be entertained and disposed of by the learned company judge. To test his submission, we invited his attention to the scheme of section 446 (1) of the Companies Act and asked him whether a suit which is filed against the company along with other defendants in the court having jurisdiction to try the same requires leave of the company court for its continuance. Learned Counsel for the appellant does not dispute that leave of the company court is necessary to proceed with such a suit where there are defendants in the suit other than the company under liquidation. In fact, the judgment of the Mysore High Court in G. S. Setty and Sons v. Yellamma Cotton, Woollen and silk Mills Co. [1970] 40 Comp Cas 10 shows that, relying upon the observations in the judgment of the Madras High Court in the case of Purushottam and Co. v. Subhodhaya Publications Ltd. [1955] 25 Comp Cas 49, it has held that when there are defendants in a suit other than the company in liquidation whose rights are affected, leave should be normally granted to proceed with the suit subject to the condition that the decree, if any, obtained should not be enforced against the company under liquidation without leave of the company court. It is clear from the above judgments that the suits where there are defendants other than the company under liquidation are contemplated under section 446 (1) of the Companies Act.( 10 ) IF the suit that is already filed against the company along with other defendants, where particularly the company under liquidation is the principal defendant is under the control of the company court in the sense that, for filing of the suit or when the suit is already filed, for proceeding with it leave of the company court is necessary which can be granted subject to the terms or conditions which it may impose, it is difficult to see why such a suit where there are defendant other than the company under liquidation is not contemplated under(2)and (3) of section 446 of the Companies Act, particular when the company under liquidation is a principal defendant in such a suit and the plaintiff insist upon execution of its decree against the company under liquidation also. In out view, therefore, in appropriate cases, in its discretion, the company court can itself entertain and dispose of a suit in which there are defendants other than the company under liquidation. ( 11 ) IT may be seen that, when, in such a suit, an order or a decree is passed by the company judge against the company under liquidation as well as the other defendants who are parties to the suits, it is open to the company court to pass appropriate orders to enable the plaintiff to execute the decree against the other defendants. It has to be seen that, as provided in section 634 of the Companies Act, any order made by the court under the Companies Act can be enforced in the same manners as a decree made by the court in a suit pending therein. The order or the decree passed by the learned company judge in a suit which he has entertained and disposed of can, as per his discretion, be executed against the other defendants. We do not, therefore, find any force in the submission made on behalf of the appellant that, in a suit where the company under liquidation is the principal defendant in the sense that it is the principal debtor, the suit cannot be entertained and disposed of by the company court only because the guarantor is also an additional defendant in the suit. If such a suit can be entertained and disposed of by the company court, then it has fill powers to pass the decree against the guarantor also which can be enforced against him under section 634 of the Companies Act.is no merit in the above submission because what the learned counsel company judge is deciding is a suit which he has entertained and which he is empowered to entertain under section 446 (2) of the Companies Act. It is a different case when the issue is such which can be exclusively decided by a special court or tribunal constituted for a particular purpose such as a rent court under the Rent Act, etc. The question of liability of a guarantor is a question which any court of general jurisdiction can decide. Moreover, the above judgment is rendered prior to the amendment of section 446 (2) of the Companies Act when, for the first time, the provision was introduced enabling the company court to entertain and dispose of the suit which is by or against the company. The above contention raised or behalf of the appellant must, therefore,of the said cases shows that the learned company judge in the said cases had refused to grant leave to the plaintiffs in the said suits to file the suits in the courts having jurisdiction to try the same. In appeal, reversing the said orders, the above High Courts have held that where the company is a necessary party to the suits and where there are other defendants, courts should generally grant leave to file or to continue such suits subject to the condition that the decree in such suit may not be enforced against such company. | 0 | 3,335 | 1,428 | ### Instruction:
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than the company under liquidation. In fact, the judgment of the Mysore High Court in G. S. Setty and Sons v. Yellamma Cotton, Woollen and silk Mills Co. [1970] 40 Comp Cas 10 shows that, relying upon the observations in the judgment of the Madras High Court in the case of Purushottam and Co. v. Subhodhaya Publications Ltd. [1955] 25 Comp Cas 49, it has held that when there are defendants in a suit other than the company in liquidation whose rights are affected, leave should be normally granted to proceed with the suit subject to the condition that the decree, if any, obtained should not be enforced against the company under liquidation without leave of the company court. It is clear from the above judgments that the suits where there are defendants other than the company under liquidation are contemplated under section 446 (1) of the Companies Act.( 10 ) IF the suit that is already filed against the company along with other defendants, where particularly the company under liquidation is the principal defendant is under the control of the company court in the sense that, for filing of the suit or when the suit is already filed, for proceeding with it leave of the company court is necessary which can be granted subject to the terms or conditions which it may impose, it is difficult to see why such a suit where there are defendant other than the company under liquidation is not contemplated under sub-sections (2)and (3) of section 446 of the Companies Act, particular when the company under liquidation is a principal defendant in such a suit and the plaintiff insist upon execution of its decree against the company under liquidation also. In out view, therefore, in appropriate cases, in its discretion, the company court can itself entertain and dispose of a suit in which there are defendants other than the company under liquidation. ( 11 ) IT may be seen that, when, in such a suit, an order or a decree is passed by the company judge against the company under liquidation as well as the other defendants who are parties to the suits, it is open to the company court to pass appropriate orders to enable the plaintiff to execute the decree against the other defendants. It has to be seen that, as provided in section 634 of the Companies Act, any order made by the court under the Companies Act can be enforced in the same manners as a decree made by the court in a suit pending therein. The order or the decree passed by the learned company judge in a suit which he has entertained and disposed of can, as per his discretion, be executed against the other defendants. We do not, therefore, find any force in the submission made on behalf of the appellant that, in a suit where the company under liquidation is the principal defendant in the sense that it is the principal debtor, the suit cannot be entertained and disposed of by the company court only because the guarantor is also an additional defendant in the suit. If such a suit can be entertained and disposed of by the company court, then it has fill powers to pass the decree against the guarantor also which can be enforced against him under section 634 of the Companies Act. ( 12 ) LEARNED counsel for the appellant has then relied upon the judgment of this court in the case of Balkrishna Mahadeo Vartak v. Indian Association Chemical Industries Ltd. [1958] 28 Comp cas 179 in which it is held that leave to file suits should also be granted where the issue is one that cannot be decided in the winding-up proceedings. On the basis of the above judgment, it is urged that the question of liability of the guarantor cannot be decided in winding-up proceedings, and, therefore, the company judge, in the instant case, would not have jurisdiction to dispose of the same. There is no merit in the above submission because what the learned counsel company judge is deciding is a suit which he has entertained and which he is empowered to entertain under section 446 (2) of the Companies Act. It is a different case when the issue is such which can be exclusively decided by a special court or tribunal constituted for a particular purpose such as a rent court under the Rent Act, etc. The question of liability of a guarantor is a question which any court of general jurisdiction can decide. Moreover, the above judgment is rendered prior to the amendment of section 446 (2) of the Companies Act when, for the first time, the provision was introduced enabling the company court to entertain and dispose of the suit which is by or against the company. The above contention raised or behalf of the appellant must, therefore, fail.( 13 ) LEARNED counsel for the appellant has relied upon the decision of the Mysore High Court in the case cited supra as also the decision of the Madras High Court cited supra in support of his submission that in a suit where there are other defendant in addition to the company under liquidation, the provision of sub-section (2) of section 446 of the Companies Act are not applicable. No such proposition is considered in the said cases which are under section 446 (1) of the Companies Act. Perusal of the said cases shows that the learned company judge in the said cases had refused to grant leave to the plaintiffs in the said suits to file the suits in the courts having jurisdiction to try the same. In appeal, reversing the said orders, the above High Courts have held that where the company is a necessary party to the suits and where there are other defendants, courts should generally grant leave to file or to continue such suits subject to the condition that the decree in such suit may not be enforced against such company.
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to matters capable of being determined expeditiously and cheaply by thecourt itself. (9 ) LAYING emphasis upon the expression by or against the company occurring in clauses (a) and (b) of(2) and also in(3) of section 446 of the Companies Act, the submission on behalf of the appellant is that the provisions of(2) and (3) of section 446 are applicable to a suit where either the company is the plaintiff or where the company alone is the defendant since, according to learned counsel appearing for the appellant, there are no words to the effect showing that the suit against the company and other defendants can also be entertained and disposed of by the learned company judge. To test his submission, we invited his attention to the scheme of section 446 (1) of the Companies Act and asked him whether a suit which is filed against the company along with other defendants in the court having jurisdiction to try the same requires leave of the company court for its continuance. Learned Counsel for the appellant does not dispute that leave of the company court is necessary to proceed with such a suit where there are defendants in the suit other than the company under liquidation. In fact, the judgment of the Mysore High Court in G. S. Setty and Sons v. Yellamma Cotton, Woollen and silk Mills Co. [1970] 40 Comp Cas 10 shows that, relying upon the observations in the judgment of the Madras High Court in the case of Purushottam and Co. v. Subhodhaya Publications Ltd. [1955] 25 Comp Cas 49, it has held that when there are defendants in a suit other than the company in liquidation whose rights are affected, leave should be normally granted to proceed with the suit subject to the condition that the decree, if any, obtained should not be enforced against the company under liquidation without leave of the company court. It is clear from the above judgments that the suits where there are defendants other than the company under liquidation are contemplated under section 446 (1) of the Companies Act.( 10 ) IF the suit that is already filed against the company along with other defendants, where particularly the company under liquidation is the principal defendant is under the control of the company court in the sense that, for filing of the suit or when the suit is already filed, for proceeding with it leave of the company court is necessary which can be granted subject to the terms or conditions which it may impose, it is difficult to see why such a suit where there are defendant other than the company under liquidation is not contemplated under(2)and (3) of section 446 of the Companies Act, particular when the company under liquidation is a principal defendant in such a suit and the plaintiff insist upon execution of its decree against the company under liquidation also. In out view, therefore, in appropriate cases, in its discretion, the company court can itself entertain and dispose of a suit in which there are defendants other than the company under liquidation. ( 11 ) IT may be seen that, when, in such a suit, an order or a decree is passed by the company judge against the company under liquidation as well as the other defendants who are parties to the suits, it is open to the company court to pass appropriate orders to enable the plaintiff to execute the decree against the other defendants. It has to be seen that, as provided in section 634 of the Companies Act, any order made by the court under the Companies Act can be enforced in the same manners as a decree made by the court in a suit pending therein. The order or the decree passed by the learned company judge in a suit which he has entertained and disposed of can, as per his discretion, be executed against the other defendants. We do not, therefore, find any force in the submission made on behalf of the appellant that, in a suit where the company under liquidation is the principal defendant in the sense that it is the principal debtor, the suit cannot be entertained and disposed of by the company court only because the guarantor is also an additional defendant in the suit. If such a suit can be entertained and disposed of by the company court, then it has fill powers to pass the decree against the guarantor also which can be enforced against him under section 634 of the Companies Act.is no merit in the above submission because what the learned counsel company judge is deciding is a suit which he has entertained and which he is empowered to entertain under section 446 (2) of the Companies Act. It is a different case when the issue is such which can be exclusively decided by a special court or tribunal constituted for a particular purpose such as a rent court under the Rent Act, etc. The question of liability of a guarantor is a question which any court of general jurisdiction can decide. Moreover, the above judgment is rendered prior to the amendment of section 446 (2) of the Companies Act when, for the first time, the provision was introduced enabling the company court to entertain and dispose of the suit which is by or against the company. The above contention raised or behalf of the appellant must, therefore,of the said cases shows that the learned company judge in the said cases had refused to grant leave to the plaintiffs in the said suits to file the suits in the courts having jurisdiction to try the same. In appeal, reversing the said orders, the above High Courts have held that where the company is a necessary party to the suits and where there are other defendants, courts should generally grant leave to file or to continue such suits subject to the condition that the decree in such suit may not be enforced against such company.
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Parmeshwar Das Agarwal & Others Vs. The Additional Director (Investigation) Serious Fraud Investigation Office, Ministry of Corporate Affairs, Government of India Regional Office & Another | Commission or based on its recommendations. However, by its very title, the investigation under section 212 by the SFIO ought to be on the basis of the opinion of the Central Government that it is necessary to investigate into the affairs of the company by SFIO. That opinion has to be based on the report of the Registrar or Inspector under section 208; on intimation of a special resolution passed by a company that its affairs are required to be investigated; in the public interest or on the request from any department of the Central Government or the State Government. By section 211, the SFIO is established to investigate frauds relating to a company. It is a very special office and headed by a Director and consists of such number of experts from the fields enumerated in subsection (2) of section 211 to be appointed by the Central Government from amongst persons of ability, integrity and experience. The wide powers that this office enjoys, as is set out in various sub-sections of section 212, would denote as to how its involvement comes after the investigations are assigned to it by the Central Government. By their very nature the investigations into frauds relating to a company have to be assigned. They have to be of such magnitude and seriousness demanding involvement of experts in the fields enumerated in sub-section (2) of section 211. Therefore, while exercising the powers under sub-section (1) of section 212, the Central Government ought to be not only forming an opinion about the necessity to investigate into the affairs of the company, but further that such investigations have to be assigned to the SFIO.48. We do not think that there were materials in the present case and which can be termed as enough to warrant the exercise of power by the Central Government by resorting to section 212(1) of the Act of 2013. The Central Government, in the order under challenge, did not spell out any circumstances, except outlining its power under the above sections to order investigation into the affairs of a company in public interest. None disputes that power or its existence. In para 2 of the impugned order, however, a reference is made to the report of the Registrar of Companies, West Bengal, dated 13th January, 2016. We have already held that the findings in this report are not enough for the Central Government to exercise the drastic power. Something more was required and to be established as circumstances or material enough for exercise of the power. That is clearly lacking in this case.49. This is the only basis, namely, the report of the Registrar of Companies, West Bengal, or its contents which has enabled the Central Government to exercise its powers under section 212(1)(c). It is, therefore, apparent that it has not necessarily acted in terms of its power conferred by section 212 to direct investigation into the affairs of the company in public interest. The foundation for reaching the opinion or satisfaction is the report of the Registrar. We have referred to the details in that report and we are of the firm opinion that based on that the Central Government could not have recorded a satisfaction or an opinion that investigation into the affairs of the company are necessary. There is no element of public interest which is projected, save and except some vague and general references to certain allegations in matters of bank finance and allotment of coal mines and alleged diversion of raw materials. There has been absolutely no details furnished nor referred in the report. Rather, the report proceeds on the basis that as far as these issues are concerned nothing can be done by the Ministry of Corporate Affairs or the Registrar of Companies. We fail to understand, therefore, how in the present facts and circumstances and based on allegations and counter allegations between two groups of shareholders can it e even held that it is necessary in public interest to direct an investigation into the affairs of the company. Once we reach the conclusion that there is lack of requisite material to arrive at the requisite opinion or record the necessary satisfaction, then, in exercise of our powers of judicial review, we can safely quash and set aside the impugned order. We find that the opinion recorded or the satisfaction reached is vitiated by total non application of mind. None of the factors which are germane and relevant for forming the opinion have been referred. The opinion or satisfaction is based only on the complaint of the Member of Parliament to the CVC and with regard to which report was called for from the Registrar. Even the contents of that report have been, as held above, misread and totally misinterpreted. Based on that no opinion could have been recorded that it is necessary to investigate the affairs of the company in public interest.50. Once we reach the above conclusion, it is not necessary to express any opinion as to whether the SFIO at Mumbai has the necessary territorial jurisdiction to summon the petitioners for an inquiry. We also do not record any opinion for we are satisfied that in the facts and circumstances of the present case even in relation to private company, a complaint could have been made and that complaint could have been probed further.51. We are in complete agreement with Mr. Godbole that this is an investigation directed at the instance of the rival groups and though Mr. Agarwal tries to pursuade us into holding that the Central Government has not been influenced by or is never interested in family matters or disputes, we find that to be the essential basis on which the whole action is initiated. It being so initiated at the threshold itself it is vitiated. The law does not permit entering into all such controversies as are essentially factual and existing between groups of shareholders of a private company locked in litigation and which litigation has not reached finality. | 1[ds]The public at large is not concerned with its affairs, much less internal management. The petitioners have pointed out as to how there is a large family involving about three brothers. These three brothers, in turn, have formed separate groups comprising of their families, There are two units one at Raigarh in Chattisgarh and another at Jharsuguda in the State of Odisha. The company manufactures sponge iron. That there are disputes between these groups who have the entire shareholding of the company and those disputes are subject matter of several proceedings pending before the High Court of Calcutta. There was an attempt made to resolve the disputes amicably. A settlement document / MOU was drawn up with respective obligations and to be discharged by the groups, there are allegations and counter allegations of failure to discharge them. An attempt is made to resile from the said obligations and have the entire arrangement or settlement cancelled or declared invalid and illegal. There are some Suits in relation thereto are pending before the High Court of Calcutta. An attempt was also made to resolve the disputes by demerging the businesses of the company. Though this demerger was taken forward and a company petition seeking approval to the scheme of demerger was filed in the Calcutta High Court, one group member backed out and filed an affidavit in opposition. That is how the scheme could not go through. Thereafter, the orders were passed by the single Judges of the High Court of Calcutta refusing interim reliefs and sanctioning the scheme. Appeals from the said order were preferred and as far as appeal against interim order in the suit are concerned, that has also been dismissed. The appeal from the order passed by the company Judge in the High Court of Calcutta approving the scheme is still pending. Then there are various acts of oppression and mismanagement alleged and they are pending before the Company Law Board.On the other hand, Mr. Agarwal appearing on behalf of the respondents would submit that the Central Government has no intent of interfering in family disputes. It does not intend to take any sides at all. However, whether it is a company privately managed or otherwise, if it is brought to the notice of the Central Government that its affairs are being managed in such a way as would prejudice the interest of the public, then, to protect such larger public interest, powers are conferred in the Central Government. Mr. Agarwal relied upon the entire scheme contained in The Indian Companies Act, 1956 and The Companies Act, 2013. He submits that the power akin to section 235 of the Companies Act, 1956 and now to be found in the Companies Act, 2013, vide section 212, has been exercised. That has been exercised on the footing that the report of the Registrar enables the Central Government to appoint Inspectors to investigate affairs of the company and to report thereon.As far as the 1956 Act is concerned, the same contains provision enabling the Central Government to act upon a report made by the Registrar under(6) of section 234 or(7) of section 234 read with subsection (3) thereof and appoint one or more competent persons as Inspectors to investigate into the affairs of the company and to report thereon in such manner as the Central Government may direct. The further powers in terms of section 236 enables members of the company to approach the Central Government for causing an investigation to be made. That is a situation dealt with by section 236. Without prejudice to the powers under section 235, the Central Government independently can direct investigation, but that is in other cases. The said power is to be found in section 237.33. What we have to note is that this investigation of affairs of a company can be directed by the Central Government on the basis of a report made by the Registrar under section 234(6). Section 234 of the Companies Act, 1956, enables the Registrar to call for information or explanation. If on perusing any document, which a company is required to submit to him under the Act, the Registrar is of the opinion that any information or any explanation is necessary with respect to any matter to which such document purports to relate, he may, by a written order call on the company submitting the document to furnish in writing such information or explanation within such time as he may specify in the order. On receipt of this order, the duties of the companies are then enumerated in section 234(2). The officer of the company is also obliged to perform his duty as set out in(3) of section 234. If there is awith the order and information or explanation is not furnished or if any information or explanation is furnished, but, in the opinion of the Registrar, is inadequate, then, he has a power and which is enumerated in section 234(3A) whichhas been introduced by the Act 65 of 1960. Then comes a situation where the company or any person as referred to in the aboverefuses or neglects to furnish any such information or explanation or if the company or any such person as is referred to in(3A) refuses or neglects to produce any such books and papers, that is an offence in terms of(4) of section 234.(5) of section 234 enables the Registrar to annex a writing, book or paper or where that book or paper is required by the company, any copy or extract thereof to the document referred to in(1), and he shall annex that writing in pursuance of the order he passes under(3A) or of an order underon (6) of section 234 deals with a situation where information or explanation called for is not furnished within the specified time or furnished but on such information or explanation being perused the Registrar forms an opinion that the document referred to intogether with such information or explanation or such books and papers discloses an unsatisfactory state of affairs or does not disclose a full and fair statement of any matter to which the document purports to relate, the Registrar shall report in writing the circumstances of the case to the Central Government.Thus, the principle is that there has to be an opinion formed. That opinion may be subjective, but the existence of circumstances relevant to the inference as to the sine qua non for action must be demonstrable. It is not reasonable to hold that the clause permits the Government to say that it has formed an opinion on circumstances which it thinks exist. Since existence of circumstances is a condition fundamental to the making of the opinion, when questioned the existence of these circumstances have to be proved at least prima facie.41. In that light if one peruses the powers conferred under the 2013 Act, they are also identical. By section 206, there is a power to conduct inspection and enquiry by section 207. Both these powers are to be exercised by the Registrar. Then, the report has to be made by the Registrar and the Registrar or the Inspector after inspection of the Books of account or inquiry under section 206 and other books and papers of the company under section 207, shall submit a report in writing to the Central Government along with such documents, if any, and such report may, if necessary, include a recommendation that further investigation into the affairs of the company is necessary. For that, reasons in support have to be set out. We are not concerned with the power of search and seizure vesting in the Registrar in terms of section 209. Then comes the crucial provision in the 2013 Act, namely, section 210. That reads as under :210. Investigation into affairs ofWhere the Central Government is of the opinion, that it is necessary to investigate into the affairs of a company(a) on the receipt of a report or the Registrar or inspector under section 208;(b) on intimation of a special resolution passed by a company that the affairs of the company ought to be investigated; or(c) in public interest it may order an investigation into the affairs of the company.(2) Where an order is passed by a court or the Tribunal in any proceedings before it then the affairs of a company ought to be investigated, the Central Government shall order the investigation into the affairs of that company.(3) For the purposes of this section, the Central Government may appoint one or more persons as inspectors to investigate into the affairs of the company and to report thereon in such manner as the Central Government may direct.42. Therefore, a perusal of this section would indicate that the Central Government must form an opinion, that opinion must be that it is necessary to investigate into the affairs of a company. The Central Government can act on the receipt of a report of the Registrar or Inspector under section 208 or on intimation of a special resolution passed by a company that its affairs are to be investigated or in public interest. Thus, there is a discretion to order an investigation into the affairs of the company.43. As far as the principles laid down in the afore quoted decisions they are salutary and must apply even to the exercise of power in terms of section 210 of the 2013 Act. What we find is that the Registrar of Companies, West Bengal, received a letter from the Ministry of Corporate Affairs dated 30th October, 2015. It is evident that the letter referred to the complaint of the Member of Parliament and which complaint was addressed to the Central Vigilance Commission. The CVC, in turn, forwarded it to the Central Government and the Central Government through the above Ministry of Corporate Affairs called for a report from the Registrar. The Registrar forwarded the report on the points referred in this complaint and that report dated13th January, 2016, outlines the main issue. They are as under:a) That the Company namely M/s Singhal Enterprises Private Ltd had taken more than 100 crores loan from State Bank of India, Park Street Branch, Kolkata. The Manager / GM has supported the Company instead of stopping loan.b) It appears that Honble MP has also raised doubts that If any thing wrong goes in balance sheet tomorrow and loan goes bad the bank will suffer.c) The Company has taken Iron Ore from Barbil, Orissa to Raigarh, Chhattisgarh. The Company has got CBT allotment of 10 Railway Rack per month and doing fraudulent activity. They sale material to other plant and misusing the rack allotment. I has also stated that do proper investigation through Railway Board and there allotment of CBT should be suspend until the investigation is done.d) Company has not filed its Balance Sheet since 5 years.e) Various other issues like money laundering fraud / cheating etc have raised in enclosure of complaint. [See Pg. 188]44. On each of these issues the Registrar of Companies stated that only the issue in paragraph 1(d) that the company has not filed its balance sheet for five years comes within his purview. However, his explanation says that the company has filed a petition before the Calcutta High Court being Company Petition Nos.475 of 2010 and 112 of 2012 restraining the Registrar of Companies from taking action. There is an interim order passed on 3rd October, 2010. As far as the loan transaction with State Bank of India, he says clearly in his report that it is not covered under the purview of the Companies Act. Wrong distribution of loan is a matter of investigation by the concerned Banking Regulatory Authority or other relevant agency. Thus the allegation from the Ministrys letter appears to be that even the banks have acted contrary to public interest in granting credit facilities and extending loans to the said company. However, those allegations cannot be looked into as there are independent Regulators and a mechanism as a whole available under distinct statutes. As far as the allotment of coal mines, misuse of mines, sale of materials to the other plants were not covered under the purview of the Ministry of Company Affairs or the Registrar of Companies. The Member of Parliament has requested in his complaint that investigation with regard to these issues should be by the Railway Board.45. The Registrar of Companies had already made a detailed report and forwarded it to the Ministry and the contents of which he has reproduced. He has also reported on the issue raised in the letter of the Ministry of Corporate Affairs dated 30th October, 2015. He points out in details as to how matters are subjudice and with regard to subjudice matters, it will not be possible for him to undertake any investigation. He has pointed out clearly as to how the issues relating to non filing of annual accounts / annual returns, no action is required till the pendency of litigation and upto the final outcome. As far as serious issues regarding the above matters, namely, allotment of coal mines, extension of facilities he has opined that it is not for his office to take any action. It is on the basis of such a report that the impugned order has been passed. The impugned order reads as under :WHEREAS, the Central Government has the power under section 210 and section 212(1)(c) of the Companies Act, 2013 to order investigation into the affairs of a company in Public interest.2. AND WHEREAS ROC, West Bengal has submitted his report dated 13.01.2016 to the Central Government in the matter of Singhal Enterprises Pvt Ltd and has recommended that investigation be made byauthorities / specialised agency to find out misutilisation of bank finance and other violations under provision of law.3. NOW therefore, in exercise of powers conferred under section 212(1)(c) of the Companies Act, 2013, the Central Government hereby orders investigation into the affairs of Singhal Enterprises Pvt Ltd by the Serious Fraud Investigation Office (SFIO) of the Ministry of Corporate Affairs.4. The Director, SFIO, in exercise of powers u/s 212(1), may decide such number of inspectors, as he may consider necessary and the Inspectors so appointed, shall exercise all the relevant powers under the Companies Act, 2013 for the purpose of the investigation.5. SFIO shall complete the investigation and submit report to the Central Government within a period of four months from the date of issue of this order.6. This order is issued for and on behalf of the CentralK Sahoo)Joint Director46. A bare perusal of this order would indicate that the Central Government has referred to the report dated 13th January, 2016, but completely misread and misinterpreted it. It has not recommended any investigations to be made under the Companies Act,1956 or 2013. If at all the investigations are to be made in terms of this recommendatory report, or suggestion therein, that is for the multiple disciplinary authorities to find out misutilisation of bank finances and other violations of law. The respondents ought be aware that there is a difference in the language of the two relevant sections, namely, section 210 and section 212.47. Section 210 falling in the same Chapter XIV titled Inspection, Inquiry and Investigation contains these two sections. Section 210 confers a discretion in the Central Government to order an investigation into the affairs of the company and that power has to be exercised if there is an order passed by a Court or a Tribunal in any proceedings before it to the effect that the affairs of a company ought to be investigated. Thus(1) of section 210 confers a discretion while(2) is mandatory in terms. By(3) and when the Central Government orders an investigation into the affairs of the company, it may appoint one or more persons as Inspectors so as to carry out this task and to report thereon in such manner as the Central Government may direct. By section 212 the seventeenthereof enable investigation into the affairs of a company by Serious Fraud Investigation Office. This power is without prejudice to the provisions of section 210. This power is to be exercised if the Central Government is of the opinion that it is necessary to investigate into the affairs of a company by the SFIO. Therefore,the power to investigate into the affairs of company is common to both provisions. In the former there are three clauses (a) to (c) in(1) of section 210 and the investigation is to be carried out by the Central Government by appointing Inspectors and there is a discretion in that behalf. This power is stated to be akin to section 235 of the 1956 Act. The latter enables investigations into the affairs of a company by the SFIO and there is one more clause (d) in(1) of section 212 where the Central Government can act on a request from any department of the Central Government or a State Government. Therefore, in a given case there could be an action initiated on the request of the Central Vigilance Commission or based on its recommendations. However, by its very title, the investigation under section 212 by the SFIO ought to be on the basis of the opinion of the Central Government that it is necessary to investigate into the affairs of the company by SFIO. That opinion has to be based on the report of the Registrar or Inspector under section 208; on intimation of a special resolution passed by a company that its affairs are required to be investigated; in the public interest or on the request from any department of the Central Government or the State Government. By section 211, the SFIO is established to investigate frauds relating to a company. It is a very special office and headed by a Director and consists of such number of experts from the fields enumerated in subsection (2) of section 211 to be appointed by the Central Government from amongst persons of ability, integrity and experience. The wide powers that this office enjoys, as is set out in variousof section 212, would denote as to how its involvement comes after the investigations are assigned to it by the Central Government. By their very nature the investigations into frauds relating to a company have to be assigned. They have to be of such magnitude and seriousness demanding involvement of experts in the fields enumerated insubsection (2) of section211. Therefore, while exercising the powers under(1) of section 212, the Central Government ought to be not only forming an opinion about the necessity to investigate into the affairs of the company, but further that such investigations have to be assigned to the SFIO.48. We do not think that there were materials in the present case and which can be termed as enough to warrant the exercise of power by the Central Government by resorting to section 212(1) of the Act of 2013. The Central Government, in the order under challenge, did not spell out any circumstances, except outlining its power under the above sections to order investigation into the affairs of a company in public interest. None disputes that power or its existence. In para 2 of the impugned order, however, a reference is made to the report of the Registrar of Companies, West Bengal, dated 13th January, 2016. We have already held that the findings in this report are not enough for the Central Government to exercise the drastic power. Something more was required and to be established as circumstances or material enough for exercise of the power. That is clearly lacking in this case.49. This is the only basis, namely, the report of the Registrar of Companies, West Bengal, or its contents which has enabled the Central Government to exercise its powers under section 212(1)(c). It is, therefore, apparent that it has not necessarily acted in terms of its power conferred by section 212 to direct investigation into the affairs of the company in public interest. The foundation for reaching the opinion or satisfaction is the report of the Registrar. We have referred to the details in that report and we are of the firm opinion that based on that the Central Government could not have recorded a satisfaction or an opinion that investigation into the affairs of the company are necessary. There is no element of public interest which is projected, save and except some vague and general references to certain allegations in matters of bank finance and allotment of coal mines and alleged diversion of raw materials. There has been absolutely no details furnished nor referred in the report. Rather, the report proceeds on the basis that as far as these issues are concerned nothing can be done by the Ministry of Corporate Affairs or the Registrar of Companies. We fail to understand, therefore, how in the present facts and circumstances and based on allegations and counter allegations between two groups of shareholders can it e even held that it is necessary in public interest to direct an investigation into the affairs of the company. Once we reach the conclusion that there is lack of requisite material to arrive at the requisite opinion or record the necessary satisfaction, then, in exercise of our powers of judicial review, we can safely quash and set aside the impugned order. We find that the opinion recorded or the satisfaction reached is vitiated by total non application of mind. None of the factors which are germane and relevant for forming the opinion have been referred. The opinion or satisfaction is based only on the complaint of the Member of Parliament to the CVC and with regard to which report was called for from the Registrar. Even the contents of that report have been, as held above, misread and totally misinterpreted. Based on that no opinion could have been recorded that it is necessary to investigate the affairs of the company in public interest.50. Once we reach the above conclusion, it is not necessary to express any opinion as to whether the SFIO at Mumbai has the necessary territorial jurisdiction to summon the petitioners for an inquiry. We also do not record any opinion for we are satisfied that in the facts and circumstances of the present case even in relation to private company, a complaint could have been made and that complaint could have been probed further.51. We are in complete agreement with Mr. Godbole that this is an investigation directed at the instance of the rival groups and though Mr. Agarwal tries to pursuade us into holding that the Central Government has not been influenced by or is never interested in family matters or disputes, we find that to be the essential basis on which the whole action is initiated. It being so initiated at the threshold itself it is vitiated. The law does not permit entering into all such controversies as are essentially factual and existing between groups of shareholders of a private company locked in litigation and which litigation has not reached finality. | 1 | 13,637 | 4,232 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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Commission or based on its recommendations. However, by its very title, the investigation under section 212 by the SFIO ought to be on the basis of the opinion of the Central Government that it is necessary to investigate into the affairs of the company by SFIO. That opinion has to be based on the report of the Registrar or Inspector under section 208; on intimation of a special resolution passed by a company that its affairs are required to be investigated; in the public interest or on the request from any department of the Central Government or the State Government. By section 211, the SFIO is established to investigate frauds relating to a company. It is a very special office and headed by a Director and consists of such number of experts from the fields enumerated in subsection (2) of section 211 to be appointed by the Central Government from amongst persons of ability, integrity and experience. The wide powers that this office enjoys, as is set out in various sub-sections of section 212, would denote as to how its involvement comes after the investigations are assigned to it by the Central Government. By their very nature the investigations into frauds relating to a company have to be assigned. They have to be of such magnitude and seriousness demanding involvement of experts in the fields enumerated in sub-section (2) of section 211. Therefore, while exercising the powers under sub-section (1) of section 212, the Central Government ought to be not only forming an opinion about the necessity to investigate into the affairs of the company, but further that such investigations have to be assigned to the SFIO.48. We do not think that there were materials in the present case and which can be termed as enough to warrant the exercise of power by the Central Government by resorting to section 212(1) of the Act of 2013. The Central Government, in the order under challenge, did not spell out any circumstances, except outlining its power under the above sections to order investigation into the affairs of a company in public interest. None disputes that power or its existence. In para 2 of the impugned order, however, a reference is made to the report of the Registrar of Companies, West Bengal, dated 13th January, 2016. We have already held that the findings in this report are not enough for the Central Government to exercise the drastic power. Something more was required and to be established as circumstances or material enough for exercise of the power. That is clearly lacking in this case.49. This is the only basis, namely, the report of the Registrar of Companies, West Bengal, or its contents which has enabled the Central Government to exercise its powers under section 212(1)(c). It is, therefore, apparent that it has not necessarily acted in terms of its power conferred by section 212 to direct investigation into the affairs of the company in public interest. The foundation for reaching the opinion or satisfaction is the report of the Registrar. We have referred to the details in that report and we are of the firm opinion that based on that the Central Government could not have recorded a satisfaction or an opinion that investigation into the affairs of the company are necessary. There is no element of public interest which is projected, save and except some vague and general references to certain allegations in matters of bank finance and allotment of coal mines and alleged diversion of raw materials. There has been absolutely no details furnished nor referred in the report. Rather, the report proceeds on the basis that as far as these issues are concerned nothing can be done by the Ministry of Corporate Affairs or the Registrar of Companies. We fail to understand, therefore, how in the present facts and circumstances and based on allegations and counter allegations between two groups of shareholders can it e even held that it is necessary in public interest to direct an investigation into the affairs of the company. Once we reach the conclusion that there is lack of requisite material to arrive at the requisite opinion or record the necessary satisfaction, then, in exercise of our powers of judicial review, we can safely quash and set aside the impugned order. We find that the opinion recorded or the satisfaction reached is vitiated by total non application of mind. None of the factors which are germane and relevant for forming the opinion have been referred. The opinion or satisfaction is based only on the complaint of the Member of Parliament to the CVC and with regard to which report was called for from the Registrar. Even the contents of that report have been, as held above, misread and totally misinterpreted. Based on that no opinion could have been recorded that it is necessary to investigate the affairs of the company in public interest.50. Once we reach the above conclusion, it is not necessary to express any opinion as to whether the SFIO at Mumbai has the necessary territorial jurisdiction to summon the petitioners for an inquiry. We also do not record any opinion for we are satisfied that in the facts and circumstances of the present case even in relation to private company, a complaint could have been made and that complaint could have been probed further.51. We are in complete agreement with Mr. Godbole that this is an investigation directed at the instance of the rival groups and though Mr. Agarwal tries to pursuade us into holding that the Central Government has not been influenced by or is never interested in family matters or disputes, we find that to be the essential basis on which the whole action is initiated. It being so initiated at the threshold itself it is vitiated. The law does not permit entering into all such controversies as are essentially factual and existing between groups of shareholders of a private company locked in litigation and which litigation has not reached finality.
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1
### Explanation:
the request of the Central Vigilance Commission or based on its recommendations. However, by its very title, the investigation under section 212 by the SFIO ought to be on the basis of the opinion of the Central Government that it is necessary to investigate into the affairs of the company by SFIO. That opinion has to be based on the report of the Registrar or Inspector under section 208; on intimation of a special resolution passed by a company that its affairs are required to be investigated; in the public interest or on the request from any department of the Central Government or the State Government. By section 211, the SFIO is established to investigate frauds relating to a company. It is a very special office and headed by a Director and consists of such number of experts from the fields enumerated in subsection (2) of section 211 to be appointed by the Central Government from amongst persons of ability, integrity and experience. The wide powers that this office enjoys, as is set out in variousof section 212, would denote as to how its involvement comes after the investigations are assigned to it by the Central Government. By their very nature the investigations into frauds relating to a company have to be assigned. They have to be of such magnitude and seriousness demanding involvement of experts in the fields enumerated insubsection (2) of section211. Therefore, while exercising the powers under(1) of section 212, the Central Government ought to be not only forming an opinion about the necessity to investigate into the affairs of the company, but further that such investigations have to be assigned to the SFIO.48. We do not think that there were materials in the present case and which can be termed as enough to warrant the exercise of power by the Central Government by resorting to section 212(1) of the Act of 2013. The Central Government, in the order under challenge, did not spell out any circumstances, except outlining its power under the above sections to order investigation into the affairs of a company in public interest. None disputes that power or its existence. In para 2 of the impugned order, however, a reference is made to the report of the Registrar of Companies, West Bengal, dated 13th January, 2016. We have already held that the findings in this report are not enough for the Central Government to exercise the drastic power. Something more was required and to be established as circumstances or material enough for exercise of the power. That is clearly lacking in this case.49. This is the only basis, namely, the report of the Registrar of Companies, West Bengal, or its contents which has enabled the Central Government to exercise its powers under section 212(1)(c). It is, therefore, apparent that it has not necessarily acted in terms of its power conferred by section 212 to direct investigation into the affairs of the company in public interest. The foundation for reaching the opinion or satisfaction is the report of the Registrar. We have referred to the details in that report and we are of the firm opinion that based on that the Central Government could not have recorded a satisfaction or an opinion that investigation into the affairs of the company are necessary. There is no element of public interest which is projected, save and except some vague and general references to certain allegations in matters of bank finance and allotment of coal mines and alleged diversion of raw materials. There has been absolutely no details furnished nor referred in the report. Rather, the report proceeds on the basis that as far as these issues are concerned nothing can be done by the Ministry of Corporate Affairs or the Registrar of Companies. We fail to understand, therefore, how in the present facts and circumstances and based on allegations and counter allegations between two groups of shareholders can it e even held that it is necessary in public interest to direct an investigation into the affairs of the company. Once we reach the conclusion that there is lack of requisite material to arrive at the requisite opinion or record the necessary satisfaction, then, in exercise of our powers of judicial review, we can safely quash and set aside the impugned order. We find that the opinion recorded or the satisfaction reached is vitiated by total non application of mind. None of the factors which are germane and relevant for forming the opinion have been referred. The opinion or satisfaction is based only on the complaint of the Member of Parliament to the CVC and with regard to which report was called for from the Registrar. Even the contents of that report have been, as held above, misread and totally misinterpreted. Based on that no opinion could have been recorded that it is necessary to investigate the affairs of the company in public interest.50. Once we reach the above conclusion, it is not necessary to express any opinion as to whether the SFIO at Mumbai has the necessary territorial jurisdiction to summon the petitioners for an inquiry. We also do not record any opinion for we are satisfied that in the facts and circumstances of the present case even in relation to private company, a complaint could have been made and that complaint could have been probed further.51. We are in complete agreement with Mr. Godbole that this is an investigation directed at the instance of the rival groups and though Mr. Agarwal tries to pursuade us into holding that the Central Government has not been influenced by or is never interested in family matters or disputes, we find that to be the essential basis on which the whole action is initiated. It being so initiated at the threshold itself it is vitiated. The law does not permit entering into all such controversies as are essentially factual and existing between groups of shareholders of a private company locked in litigation and which litigation has not reached finality.
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Bishan Das And Others Vs. The State Of Punjab And Others | hold property has been violated in the most arbitrary manner which is destructive of the basic principles of the rule of law guaranteed by the Constitution.13. On behalf of the respondents an affidavit has been made by the Sub-Divisional Officer, Barnala, in which it has been stated inter alia that "the property is trust property of a public and charitable character and the petitioners are not entitled to claim any property rights in respect of the same." Assuming that the property is trust property of the nature suggested, no attempt has been made in the affidavit to show under what authority of law the State or its executive officers were justified in taking the action that was taken against the petitioners in respect of the dharmasala. Learned Counsel for the respondents has sought to justify that action on the ground that the petitioners were mere trespassers and as the land on which the dharmasala stood belonged to the State, the respondents were entitled to use the minimum of force to eject the trespassers. Secondly he has contended, on the strength of the decision of this Court in Sohan Lal v. Union of India, 1957 SCR 738 : ( (S) AIR 1957 SC 529 ), that there is a serious dispute on questions of fact between the parties in this case and also whether the petitioners have any right or title to the subject matter of dispute; therefore, proceedings by way of a writ are not appropriate in this case inasmuch as the decision of the Court would amount to a decree declaring a partys title and ordering restoration of possession.14. We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights. There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of S. 60(b) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops: nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat.It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee, 6 Suth WR 228; Beni Ram v. Kundan Lall, 26 Ind App 58, and Narayan Das v. Jatindranath, 54 Ind App 218: (AIR 1927 PC 135).15. These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the States legal Remembrancer. It is well recognised that a suit under S. 92. Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust.16. Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made in 1925, and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a mere trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.17. As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed question of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders. | 1[ds]a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the States legal Remembrancer. It is well recognised that a suit under S. 92. Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of thethat so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed question of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executivefeel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, 1955-1 SCR 408 : (AIR 1954 SC 415 ).the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts.In Ram Prasad Narayan Sahi v. State of Bihar, 1953 SCR 1129: (AIR 1953 SC 215 ), this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahis case (supra), remarkable for their disturbinghave made out a clear case of the violation of their fundamental rights. | 1 | 3,663 | 790 | ### 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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hold property has been violated in the most arbitrary manner which is destructive of the basic principles of the rule of law guaranteed by the Constitution.13. On behalf of the respondents an affidavit has been made by the Sub-Divisional Officer, Barnala, in which it has been stated inter alia that "the property is trust property of a public and charitable character and the petitioners are not entitled to claim any property rights in respect of the same." Assuming that the property is trust property of the nature suggested, no attempt has been made in the affidavit to show under what authority of law the State or its executive officers were justified in taking the action that was taken against the petitioners in respect of the dharmasala. Learned Counsel for the respondents has sought to justify that action on the ground that the petitioners were mere trespassers and as the land on which the dharmasala stood belonged to the State, the respondents were entitled to use the minimum of force to eject the trespassers. Secondly he has contended, on the strength of the decision of this Court in Sohan Lal v. Union of India, 1957 SCR 738 : ( (S) AIR 1957 SC 529 ), that there is a serious dispute on questions of fact between the parties in this case and also whether the petitioners have any right or title to the subject matter of dispute; therefore, proceedings by way of a writ are not appropriate in this case inasmuch as the decision of the Court would amount to a decree declaring a partys title and ordering restoration of possession.14. We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights. There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of S. 60(b) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops: nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat.It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee, 6 Suth WR 228; Beni Ram v. Kundan Lall, 26 Ind App 58, and Narayan Das v. Jatindranath, 54 Ind App 218: (AIR 1927 PC 135).15. These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the States legal Remembrancer. It is well recognised that a suit under S. 92. Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust.16. Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made in 1925, and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a mere trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.17. As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed question of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders.
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### Explanation:
a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the States legal Remembrancer. It is well recognised that a suit under S. 92. Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of thethat so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repeal the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed question of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executivefeel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand v. State of Himachal Pradesh, 1955-1 SCR 408 : (AIR 1954 SC 415 ).the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts.In Ram Prasad Narayan Sahi v. State of Bihar, 1953 SCR 1129: (AIR 1953 SC 215 ), this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahis case (supra), remarkable for their disturbinghave made out a clear case of the violation of their fundamental rights.
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M/S. S.E. GRAPHITES PRIVATE LIMITED Vs. STATE OF TELANGANA | decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent. 12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority. 13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld. 14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect. 15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us. 16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed. 17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax dues. | 1[ds]8. These provisions have been interpreted by the Division Bench of the High Court in the case of Ankamma Trading Company (supra). We are essentially concerned with the second proviso of Section 19 and Section 31 of the respective enactment; and first proviso of Section 21(2) and Section 33(2) of the respective enactment. Upon reading the Section under consideration as a whole, it is evident that the first proviso in the concerned Section (Section 19 and Section 31, as the case may be) pertains to limitation period for filing of an appeal; and discretion of the Appellate Authority to condone the delay in filing of such appeal, up to a maximum period specified therein. Indeed, the second proviso is part of the same Section. However, it is an independent condition and in one sense, mutually exclusive condition mandating or enjoining the appellant to produce proof of payment of tax dues in respect of which the appeal is preferred. That obligation, in our opinion, can be discharged until the appeal is considered for admission and/or condonation of delay in filing of the appeal, as the case may be, by the Appellate Authority for the first time. We are inclined to take this view as even the High Court in Ankamma Trading Company (supra) had justly noted that the said proviso does not provide for any specific period within which the tax dues should be paid. Moreover, there is no express stipulation to deposit the tax dues in respect of which the appeal is preferred, at the time of its filing, institution or presentation as such. In the absence of such a clear stipulation, it must necessarily follow that it is open to the assessee to file the appeal within the statutory period of limitation provided therefor and later on, deposit the specified tax dues but before the appeal is taken up for consideration by the Appellate Authority for the first time – be it for condonation of delay in filing the appeal and/or to admit it on merits or otherwise. The proof of such payment having been made could be produced thereat. Failing which, the Appellate Authority will have no other option but to reject the appeal on that count. The Appellate Authority has no power to extend the time to deposit the specified tax dues9. Suffice it to observe that, stricto sensu, the said proviso is not a provision of pre-deposit at the stage of filing, institution or presentation of the appeal as such; but is a provision stipulating payment of tax dues as a pre-requisite or sine qua non for consideration of appeal on merits or otherwise and/or for condonation of delay in filing the same, as the case may be, for the first time. If we may say so, it is also to impose fetter on the Appellate Authority from admitting the appeal for consideration on merits. It is well recognized that filing, institution or presentation of appeal in the office of the Appellate Authority is an independent event than the appeal being taken up for consideration for the first time for being admitted on merits or otherwise and/or for condonation of delay in filing it, as the case may be. There is no reason to interpret the stated proviso in any other manner lest, inevitably, it would result in re¬writing the same and entail in doing violence to the legislative intent. Presumably, this Court in M/s. Innovatives Systems (supra), and other decisions rendered following the same, therefore, was persuaded to allow the appeal preferred by the assessee and to relegate the parties before the Appellate Authority for consideration of the appeal for admission on merits10. Concededly, this Court was conscious of the decision in Ankamma Trading Company (supra). In that, the judgment under challenge before it in the concerned appeal was founded on the view already taken by the coordinate bench of the same High Court [including in Ankamma Trading Company (supra)]. It has been so recorded by this Court. In that sense, the legal position expounded in Ankamma Trading Company (supra), stood impliedly overruled, even though that decision has not been adverted to or expressly overruled by this Court11. The argument of the respondent proceeds that the decision in M/s. Innovatives Systems (supra), neither refers to any specific provision nor has it expressly over turned the decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax duesCivil Appeal Nos.4098/2016 & 4099/201619. These appeals were heard analogously with Civil Appeal No.7574/2014. In this set of appeals, admittedly, the appellant¬ assessee deposited the amount after the appeal filed by them came to be rejected by the Appellate Authority. In that sense, the appellant-assessee failed to produce proof of payment of tax dues in respect of which the appeal was preferred before the Appellate Authority when their appeal was taken up for consideration for admission. In Civil Appeal No.7574/2014, we have held that it is open to the assessee to deposit the amount before the event of first date of hearing of the appeal for admission and/or for condonation of delay in filing the appeal.21. This appeal was analogously heard along with Civil Appeal No.7574/2014. In the present appeal, the State has challenged the judgment and order passed by the High Court in Writ Petition No.22337 of 2015 and, in particular, the liberty granted to the respondent (writ petitioner) to pay the requisite amount after expiry of the limitation period prescribed under Section 33 of AP VAT Act, 2005 and on such deposit being made, the Appellate Authority is directed to consider the appeal on merits22. The background in which such direction came to be issued, can be discerned from the appeal filed by the State. To wit, the respondent, who was dealing in works contracts and was registered under APGST Act, 1957, was assessed by the appropriate authority but that assessment was revised by the Commercial Tax Officer by passing a revision order dated 25 th March, 2013. Against that decision, respondent¬assessee preferred appeal before the State Sales Tax Appellate Tribunal. During the pendency of the said appeal, respondent filed a writ petition to challenge the orders passed by the Commercial Tax Officer dated 27 th February, 2013 and 25 th March, 2013. That writ petition has been disposed of by the High Court vide impugned judgment, with liberty to comply with the condition of paying the tax dues in terms of the second proviso of the concerned provision within a period of six weeks from the date of receipt of the copy of order and upon such compliance, the Appellate Authority would decide the pending appeal on merits23. Having regard to the exposition in Civil Appeal No.7574 of 2014, decided today, it must follow that if the appeal filed by the respondent is still pending and has not been taken up for consideration so far by the Appellate Authority, only then it would be open to the respondent to deposit the requisite amount and produce the proof of such deposit before the Appellate Authority. If, however, the appeal has already been taken up for consideration for being admitted on merits or otherwise and by that date the respondent had not deposited the requisite amount as prescribed in terms of stated proviso, the Appellate Authority would be well within its jurisdiction and rather duty bound to reject the appeal on the ground of an institutional defect. That is a matter to be considered by the Appellate Authority. Besides this observation, nothing more is required to be stated in this appeal filed by the Stateg out of SLP (C) No.19961/2015)26. This appeal takes exception to the judgment and order dated 31 st October, 2014 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Writ Petition No.837 of 2014, whereby the writ petition filed by the assessee challenging the order passed by the second respondent-Appellate Authority dated 31 st December, 2013 came to be rejected. The appeal was dismissed on the sole ground that the appellant had failed to pay the required twelve and a half percent (12.5%) disputed tax in terms of Section 31 of AP VAT Act, 2005. Initially, the Commercial Tax Officer passed an assessment order on 11 th June, 2012. The appellant filed appeal against the said assessment order on 11 th July, 2012. The appellant was called upon by the Appellate Authority vide communication dated 12 th July, 2012 to make good the short payment of pre¬deposit in the sum of Rs.1,35,00,512/¬ as also the institution fee. The appellant filed response to the said communication contending that there was input tax credit to the account of the appellant in the sum of Rs.1080,01,63,420/¬ and that amount would arise only in respect of the tax paid on taxable purchases effected within the State. Despite that factual aspect brought to the notice of the first Appellate Authority, it rejected the appeal for non-payment of pre¬deposit amount vide order dated 24 th July, 2012. This was an ex¬parte order27. The appellant then filed representation to the assessing authority for issuing tax credit certificate for giving necessary adjustments against the taxes payable for 04/2010 to 06/2011 and pointing out the order of the Tribunal dated 18 th October, 2011 which was communicated long back but not implemented thus far. The appellant, therefore, submitted new representation to the assessing authority on 15 th September, 2012. The Commercial Tax Officer eventually, issued a certificate on 12 th October, 2012 certifying that the appellant has input tax credit of Rs. 92,01,606/-, eligible to be refunded either in cash or adjusted. On 13 th October, 2012, the Commercial Tax Officer issued proceedings holding that the appellant has an excess tax credit of Rs.66,46,284/- for adjustment or refund28. The appellant being aggrieved by the orders passed by the Appellate Deputy Commissioner rejecting appeal on 24 th July, 2012 on the ground of non-payment of requisite disputed tax amount, filed second appeal before the Sales Tax Appellate Tribunal. That came to be allowed by setting aside the order rejecting the first appeal and instead directing the first Appellate Authority to restore the appeal and hear the appellant, as the order dated 24 th July, 2012 was an ex parte order passed without hearing the appellant29. In remanded proceedings, appellant filed evidence before the first Appellate Authority on 21 st July, 2013 and requested to consider the evidence and give adjustment of the excess payment due to the appellant as certified by the assessing authority. Thus, the appellant requested the Appellate Authority to accept the tax credit certificates and take the appeal on file for disposal on merits. Despite production of the said certificates, the Appellate Deputy Commissioner once again called upon the appellant to pay the balance amount towards pre¬deposit, vide communication dated 15 th May, 2013. In response thereto, the appellant filed representation reiterating its earlier stand. Nevertheless, the Appellate Deputy Commissioner once again rejected the appeal on 31 st December, 2013, for non¬payment of pre¬deposit amount primarily relying upon the judgment of Ankamma Trading Company (supra). Eventually, the appellant challenged the aforementioned decision by filing writ petition No.847 of 2013. That writ petition has been dismissed by the High Court on the basis of the exposition in Ankamma Trading Company (supra)30. The principal grievance of the appellant is that after remand, the first Appellate Authority failed to consider the specific stand taken by the appellant that it was entitled to adjustment of the amount mentioned in the tax credit certificate and if so done the appellant had complied with the pre¬condition of deposit of twelve and a half percent (12.5%) of the amount in respect of which the appeal was filed by the appellant before the first Appellate Authority. Although, this plea was specifically taken before the Appellate Authority, the judgment of the Appellate Authority has not analysed the same at all. Instead, it proceeded to dismiss the appeal merely by relying on the exposition in Ankamma Trading Company (supra). Similarly, even the High Court after recording this argument of the learned counsel for the appellant, has not analysed the same and mechanically rejected the writ petition on the ground that appellant had failed to comply with the pre¬condition of deposit. This approach of the High Court as well as of the first Appellate Authority is the subject matter of assail in the present appeal31. We have heard the counsel for the parties. As regards the legal position expounded in Ankamma Trading Company (supra), we have already answered the same in Civil Appeal No.7574/2014 decided today. That appeal was heard along with all connected matters. In the present case, however, the additional point which arises is whether the appellant was entitled for adjustment of the amount mentioned in the tax credit certificate issued in favour of the appellant. Admittedly, the appellant had specifically taken that plea before the first Appellate Authority. However, as already mentioned hitherto the first Appellate Authority failed to analyse that aspect ¬ which it was expected to do, in terms of the earlier order passed by the second Appellate Authority and even otherwise.32. However, even the High Court has not answered this specific plea urged by the appellant, in the impugned judgment. If the appellant is right in contending that the appellant is entitled for an adjustment of amount and if so done, there would be no need for the appellant to deposit twelve and a half percent (12.5%) amount as required by the second proviso of Section 31 of the Act. The appellant had relied on the decisions of this Court to buttress that argument. However, the same has remained to be analysed and considered even by the High Court33. In that view of the matter, we deem it appropriate to set aside the impugned judgment and relegate the parties before the High Court for reconsideration of the Writ Petition No.837/2014 afresh on its own merits in accordance with law and including in light of decision of this Court in Civil Appeal No.7574/2014 decided today. All contentions available to both sides in the remanded writ petition are left open to be considered on its own merits and in accordance with law34. Accordingly, this appeal is allowed. The impugned judgment and order passed by the High Court dated 31 st October, 2014 in Writ Petition No.837/2014 is set aside and instead the writ petition is restored to the file of the High Court for fresh consideration in light of the observations made hitherto. All contentions available to the parties are left open. All pending applications are also disposed of. No order as to costsUpon perusal of order passed by the Appellate Authority, it is noticed that even the Appellate Authority rejected the appeal without taking notice of the prayer made by the appellant on oath that a tax credit of Rs.10,67,683/- is available to the appellant and that such credit has not been adjusted towards any other tax liability and can be adjusted towards the twelve and a half percent (12.5%) of disputed tax amount of Rs.67,57,696/¬, which comes to Rs.4,44,712/- only. The order of the Appellate Authority, as communicated to the appellant, reads thus:The appeal petition along with stay petition (main appeal & penalty appeal) are returned as the same are not in accordance in terms of second provision to sec.31(1) of read with Rule 38 of the AP VAT, 2005 for the reasonProvided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due or of such instalments as have been granted and the proof of payment of 12.5% of the difference of the tax assessed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferredFurther they have not filled the challan for appeal fee in original and also medical certificate for delay in submission of the appealHence, in view of the above, the admission of the two appeals stand rejected38. Even the High Court has failed to consider this aspect of the matter. Whereas, if the representation/request made by the appellant is just and deserved to be accepted, the appellant would be right in contending that no payment towards the amount specified in the stated proviso under consideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for consideration for admission on merits. In that, upon accepting the representation to adjust the tax credit of Rs.10,63,683/¬, a certificate/endorsement could be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent (12.5%). There is force in this submission. However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to consider the same on its own merits, in accordance with law. We do not wish to dilate on any other contention in this judgment. We leave all questions and contentions, available to both sides, open to be decided by the High Court on its own merits40. This appeal was tagged along with the Civil Appeal No.7574/2014 and other connected matters. However, in those cases, the High Court had rejected the writ petition on the sole ground that the concerned writ petitioner had failed to comply with the condition of deposit prescribed in terms of stated proviso of the provision(s) under consideration. In none of these cases, the High Court considered the matter on merits regarding the challenge to the original assessment order. In the present appeal, the appellant cannot be heard to agitate the question already decided in Civil Appeal No.7574/2014 as nothing has been brought to our notice to show that the appellant had deposited the specified tax dues, in respect of which the appeal was filed, before the first date of consideration of the appeal by the Appellate Authority. | 1 | 4,104 | 4,405 | ### Instruction:
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decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent. 12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority. 13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld. 14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect. 15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us. 16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed. 17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax dues.
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argument of the learned counsel for the appellant, has not analysed the same and mechanically rejected the writ petition on the ground that appellant had failed to comply with the pre¬condition of deposit. This approach of the High Court as well as of the first Appellate Authority is the subject matter of assail in the present appeal31. We have heard the counsel for the parties. As regards the legal position expounded in Ankamma Trading Company (supra), we have already answered the same in Civil Appeal No.7574/2014 decided today. That appeal was heard along with all connected matters. In the present case, however, the additional point which arises is whether the appellant was entitled for adjustment of the amount mentioned in the tax credit certificate issued in favour of the appellant. Admittedly, the appellant had specifically taken that plea before the first Appellate Authority. However, as already mentioned hitherto the first Appellate Authority failed to analyse that aspect ¬ which it was expected to do, in terms of the earlier order passed by the second Appellate Authority and even otherwise.32. However, even the High Court has not answered this specific plea urged by the appellant, in the impugned judgment. If the appellant is right in contending that the appellant is entitled for an adjustment of amount and if so done, there would be no need for the appellant to deposit twelve and a half percent (12.5%) amount as required by the second proviso of Section 31 of the Act. The appellant had relied on the decisions of this Court to buttress that argument. However, the same has remained to be analysed and considered even by the High Court33. In that view of the matter, we deem it appropriate to set aside the impugned judgment and relegate the parties before the High Court for reconsideration of the Writ Petition No.837/2014 afresh on its own merits in accordance with law and including in light of decision of this Court in Civil Appeal No.7574/2014 decided today. All contentions available to both sides in the remanded writ petition are left open to be considered on its own merits and in accordance with law34. Accordingly, this appeal is allowed. The impugned judgment and order passed by the High Court dated 31 st October, 2014 in Writ Petition No.837/2014 is set aside and instead the writ petition is restored to the file of the High Court for fresh consideration in light of the observations made hitherto. All contentions available to the parties are left open. All pending applications are also disposed of. No order as to costsUpon perusal of order passed by the Appellate Authority, it is noticed that even the Appellate Authority rejected the appeal without taking notice of the prayer made by the appellant on oath that a tax credit of Rs.10,67,683/- is available to the appellant and that such credit has not been adjusted towards any other tax liability and can be adjusted towards the twelve and a half percent (12.5%) of disputed tax amount of Rs.67,57,696/¬, which comes to Rs.4,44,712/- only. The order of the Appellate Authority, as communicated to the appellant, reads thus:The appeal petition along with stay petition (main appeal & penalty appeal) are returned as the same are not in accordance in terms of second provision to sec.31(1) of read with Rule 38 of the AP VAT, 2005 for the reasonProvided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due or of such instalments as have been granted and the proof of payment of 12.5% of the difference of the tax assessed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferredFurther they have not filled the challan for appeal fee in original and also medical certificate for delay in submission of the appealHence, in view of the above, the admission of the two appeals stand rejected38. Even the High Court has failed to consider this aspect of the matter. Whereas, if the representation/request made by the appellant is just and deserved to be accepted, the appellant would be right in contending that no payment towards the amount specified in the stated proviso under consideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for consideration for admission on merits. In that, upon accepting the representation to adjust the tax credit of Rs.10,63,683/¬, a certificate/endorsement could be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent (12.5%). There is force in this submission. However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to consider the same on its own merits, in accordance with law. We do not wish to dilate on any other contention in this judgment. We leave all questions and contentions, available to both sides, open to be decided by the High Court on its own merits40. This appeal was tagged along with the Civil Appeal No.7574/2014 and other connected matters. However, in those cases, the High Court had rejected the writ petition on the sole ground that the concerned writ petitioner had failed to comply with the condition of deposit prescribed in terms of stated proviso of the provision(s) under consideration. In none of these cases, the High Court considered the matter on merits regarding the challenge to the original assessment order. In the present appeal, the appellant cannot be heard to agitate the question already decided in Civil Appeal No.7574/2014 as nothing has been brought to our notice to show that the appellant had deposited the specified tax dues, in respect of which the appeal was filed, before the first date of consideration of the appeal by the Appellate Authority.
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S.C. SINGH Vs. STATE OF UTTARAKHAND | age of 65 years, when he would retire. The High Court observed that the Government of Uttar Pradesh agreed to bear the expenses to be incurred in respect of the post of Director, CDC. However, the University did not obtain reimbursement from the State Government for the expenses incurred. Ruling that the University could not hold out that there was no assurance by the State Government to take over the liability of the CDC after 31 March 1995, the High Court quashed Resolution No. 23 of the 76 th General Meeting of the Executive Council by which the post of the CDC was sought to be abolished. This ruling of the High Court is not challenged. On the question whether the Appellant should be allowed to continue as Director, CDC, the High Court observed that he was admittedly appointed under the scheme envisaged by the revised guidelines issued by the UGC and could only work for two tenures of three years. Noting that the Appellant had already served two terms of three years, the High Court held that the CDC will continue, but without the Appellant as its Director. It is this direction of the High Court, refusing the Appellants continuation as Director, CDC that forms the basis of the present appeal. The High Court directed that the University to complete the adjustment of the Appellant as mentioned in Resolution No. 23 of the 76 th General Meeting of the Executive Council. The High Court held that the submission that the term limit in the revised guidelines applies only to deputationists has no merit since the deputationists are also people associated with higher education and at the relevant time when the revised guidelines were issued, the retirement age of persons associated with higher education would be much less than 65 years. 6. We have heard the learned counsel for the parties. 7. Mr Vikas Singh, learned Senior Counsel for the Appellant submitted that the office order dated 02 November 1992 by which the Appellant was appointed as Director, CDC did not mention that he is being appointed on deputation or on a tenure basis. The main contention put forth for the Appellant is that applying the principle of ejusdem generis, the tenure limitation of two terms of three years in Clause 3 of the revised guidelines can only apply to those Directors appointed on a deputation basis. It was further contended that once the Appellant was absorbed, the tenure limitation which applied only to deputationists, did not apply to him.8. The learned counsel for the Respondent University submitted on the other hand that the Appellant was put to notice that his appointment was for a tenure of three years and that the tenure limitation of two terms of three years applied to the post of Director, CDC and barred the Appellant from continuing in the post after having served two terms. 9. The terms of the advertisement issued on 06 January 1992 by the University calling for applications for the posts in the newly constituted CDC are material. The relevant portion reads thus: Minimum qualification for Director are same as those for the post of a Professor as prescribed by the University. Preference will be given to the candidate who has dealt with academic administration. The tenure of the Director, College Development Council will be for 3 years. (Emphasis supplied) The Appellant was put to notice that his appointment was for a period of three years. Though the office order dated 02 November 1992 by which the Appellant was appointed as Director, CDC does not mention a tenure, it cannot be said that the Appellant was not put to notice that his appointment to the post of Director, CDC was for a period of three years. The appointment was in terms of the advertisement. 10. Clause 3 of the revised guidelines reads thus: 3. The Coordinator/Director/Dean of the College Development Council may be appointed by the Syndicate on the recommendation of the Selection Committee consisting of the Vice-Chancellor, as Chairman, a nominee of the UGC, and a nominee of the Syndicate of the University. He may be appointed in the scale of Rs. 1500-2500 plus other admissible allowances as per university rules. Persons on deputation will be eligible for deputation and other permissible allowances. He may be appointed on a tenure basis for three years, extendable for another term of three years, but not beyond the age of 65 years, when he would retire. (Emphasis supplied) 11. Learned Senior Counsel for the Appellant contended that the sentence that provides for a tenure follows the sentence that states that persons on deputation will be eligible for deputation and other permissible allowances and hence, the tenure limitation applies only to those appointed as deputationists. It is submitted that the word he appearing at the beginning of the sentence and after the sentence permitting the appointment of deputationists must be read together. 12. There is no merit in this contention. The clause deals with the appointment of the Coordinator/Director/Dean of the CDC. When the clause is read as a whole, the word he is used to indicate the pay scale and the tenure of the Coordinator/Director/Dean of the CDC. The sentence on deputationists is merely to provide that those persons on deputation will be eligible for deputation allowance and other permissible allowances. The clause read as a whole, deals with the conditions for the appointment of the Coordinator/Director/Dean of the CDC. Hence, it cannot be held that merely because the sentence providing for a tenure limitation follows the sentence on deputationists, the tenure limitation applies only to deputationists. The tenure limitation applies to every person who is appointed to the post. 13. The Appellant, who was appointed on 02 November 1992, has admittedly served out the tenure as Director, CDC of two terms of three years each. We are in agreement with the High Court that having served the tenure laid down by the revised guidelines, the Appellant cannot continue as Director, CDC. | 0[ds]12. There is no merit in this contention. The clause deals with the appointment of the Coordinator/Director/Dean of the CDC. When the clause is read as a whole, the word he is used to indicate the pay scale and the tenure of the Coordinator/Director/Dean of the CDC. The sentence on deputationists is merely to provide that those persons on deputation will be eligible for deputation allowance and other permissible allowances. The clause read as a whole, deals with the conditions for the appointment of the Coordinator/Director/Dean of the CDC. Hence, it cannot be held that merely because the sentence providing for a tenure limitation follows the sentence on deputationists, the tenure limitation applies only to deputationists. The tenure limitation applies to every person who is appointed to the post13. The Appellant, who was appointed on 02 November 1992, has admittedly served out the tenure as Director, CDC of two terms of three years each. We are in agreement with the High Court that having served the tenure laid down by the revised guidelines, the Appellant cannot continue as Director, CDC. | 0 | 1,658 | 205 | ### 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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age of 65 years, when he would retire. The High Court observed that the Government of Uttar Pradesh agreed to bear the expenses to be incurred in respect of the post of Director, CDC. However, the University did not obtain reimbursement from the State Government for the expenses incurred. Ruling that the University could not hold out that there was no assurance by the State Government to take over the liability of the CDC after 31 March 1995, the High Court quashed Resolution No. 23 of the 76 th General Meeting of the Executive Council by which the post of the CDC was sought to be abolished. This ruling of the High Court is not challenged. On the question whether the Appellant should be allowed to continue as Director, CDC, the High Court observed that he was admittedly appointed under the scheme envisaged by the revised guidelines issued by the UGC and could only work for two tenures of three years. Noting that the Appellant had already served two terms of three years, the High Court held that the CDC will continue, but without the Appellant as its Director. It is this direction of the High Court, refusing the Appellants continuation as Director, CDC that forms the basis of the present appeal. The High Court directed that the University to complete the adjustment of the Appellant as mentioned in Resolution No. 23 of the 76 th General Meeting of the Executive Council. The High Court held that the submission that the term limit in the revised guidelines applies only to deputationists has no merit since the deputationists are also people associated with higher education and at the relevant time when the revised guidelines were issued, the retirement age of persons associated with higher education would be much less than 65 years. 6. We have heard the learned counsel for the parties. 7. Mr Vikas Singh, learned Senior Counsel for the Appellant submitted that the office order dated 02 November 1992 by which the Appellant was appointed as Director, CDC did not mention that he is being appointed on deputation or on a tenure basis. The main contention put forth for the Appellant is that applying the principle of ejusdem generis, the tenure limitation of two terms of three years in Clause 3 of the revised guidelines can only apply to those Directors appointed on a deputation basis. It was further contended that once the Appellant was absorbed, the tenure limitation which applied only to deputationists, did not apply to him.8. The learned counsel for the Respondent University submitted on the other hand that the Appellant was put to notice that his appointment was for a tenure of three years and that the tenure limitation of two terms of three years applied to the post of Director, CDC and barred the Appellant from continuing in the post after having served two terms. 9. The terms of the advertisement issued on 06 January 1992 by the University calling for applications for the posts in the newly constituted CDC are material. The relevant portion reads thus: Minimum qualification for Director are same as those for the post of a Professor as prescribed by the University. Preference will be given to the candidate who has dealt with academic administration. The tenure of the Director, College Development Council will be for 3 years. (Emphasis supplied) The Appellant was put to notice that his appointment was for a period of three years. Though the office order dated 02 November 1992 by which the Appellant was appointed as Director, CDC does not mention a tenure, it cannot be said that the Appellant was not put to notice that his appointment to the post of Director, CDC was for a period of three years. The appointment was in terms of the advertisement. 10. Clause 3 of the revised guidelines reads thus: 3. The Coordinator/Director/Dean of the College Development Council may be appointed by the Syndicate on the recommendation of the Selection Committee consisting of the Vice-Chancellor, as Chairman, a nominee of the UGC, and a nominee of the Syndicate of the University. He may be appointed in the scale of Rs. 1500-2500 plus other admissible allowances as per university rules. Persons on deputation will be eligible for deputation and other permissible allowances. He may be appointed on a tenure basis for three years, extendable for another term of three years, but not beyond the age of 65 years, when he would retire. (Emphasis supplied) 11. Learned Senior Counsel for the Appellant contended that the sentence that provides for a tenure follows the sentence that states that persons on deputation will be eligible for deputation and other permissible allowances and hence, the tenure limitation applies only to those appointed as deputationists. It is submitted that the word he appearing at the beginning of the sentence and after the sentence permitting the appointment of deputationists must be read together. 12. There is no merit in this contention. The clause deals with the appointment of the Coordinator/Director/Dean of the CDC. When the clause is read as a whole, the word he is used to indicate the pay scale and the tenure of the Coordinator/Director/Dean of the CDC. The sentence on deputationists is merely to provide that those persons on deputation will be eligible for deputation allowance and other permissible allowances. The clause read as a whole, deals with the conditions for the appointment of the Coordinator/Director/Dean of the CDC. Hence, it cannot be held that merely because the sentence providing for a tenure limitation follows the sentence on deputationists, the tenure limitation applies only to deputationists. The tenure limitation applies to every person who is appointed to the post. 13. The Appellant, who was appointed on 02 November 1992, has admittedly served out the tenure as Director, CDC of two terms of three years each. We are in agreement with the High Court that having served the tenure laid down by the revised guidelines, the Appellant cannot continue as Director, CDC.
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12. There is no merit in this contention. The clause deals with the appointment of the Coordinator/Director/Dean of the CDC. When the clause is read as a whole, the word he is used to indicate the pay scale and the tenure of the Coordinator/Director/Dean of the CDC. The sentence on deputationists is merely to provide that those persons on deputation will be eligible for deputation allowance and other permissible allowances. The clause read as a whole, deals with the conditions for the appointment of the Coordinator/Director/Dean of the CDC. Hence, it cannot be held that merely because the sentence providing for a tenure limitation follows the sentence on deputationists, the tenure limitation applies only to deputationists. The tenure limitation applies to every person who is appointed to the post13. The Appellant, who was appointed on 02 November 1992, has admittedly served out the tenure as Director, CDC of two terms of three years each. We are in agreement with the High Court that having served the tenure laid down by the revised guidelines, the Appellant cannot continue as Director, CDC.
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HORI LAL Vs. THE STATE OF UTTAR PRADESH REVENUE DEPARTMENT PRINCIPAL SECRETARY | herein was the writ petitioner whereas the respondents herein were the respondents in the writ petition filed before the High Court out of which this appeal arises. 5. In exercise of the powers conferred under Section 4 (1) of the Land Acquisition Act, 1894 (for short called ?the Act 1894?), the State of UP (respondent No.1 herein) issued a notification on 30.10.2002 (Annexure P-1) for acquisition of lands as detailed in the schedule to the notification. 6. The acquisition was for the public purpose, namely, construction of Varanasi Bye-Pass (Ring Road) in District Varanasi. The State, however, invoked the urgency clause under Section 17 and, therefore, dispensed with the inquiry as provided in Section 5-A of the Act, 1894. This was followed by a declaration made under Section 6 on 29.11.2003. The appellants land was acquired in these acquisition proceedings. 7. "The Act, 1894" was repealed on 01.01.2014 and was replaced by another Act called ?the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation And Resettlement Act, 2013? (for short called ?the Act, 2013?). The Act 2013 came into force on 01.01.2014. 8. The Land Acquisition Officer, however, passed an award on 30.06.2016 (Annexure P-4), i.e., after the repeal of the Act, 1894 in relation to the aforementioned lands by determining the compensation payable to the landowner (appellant herein) accordingly. 9. The appellant (writ petitioner) thereupon felt aggrieved by the entire acquisition proceedings including passing of the award dated 30.06.2016 and filed the writ petition in the Allahabad High Court challenging therein the validity and legality of the notification issued under Section 4 of the Act, 1894 dated 30.10.2002 as also the award dated 30.06.2016. 10. The main challenge of the appellant to the acquisition proceedings was that the entire acquisition proceedings initiated by the respondent-State on the strength of notification issued on 30.10.2002 under Section 4 of the Act, 1894 which eventually led to passing of the award on 30.06.2016, stood lapsed consequent upon the repeal of the Act, 1894. 11. It is pertinent to mention here that during the hearing before the High Court, the writ petitioner (appellant herein) expressly gave up his challenge to the acquisition proceedings and confined his challenge only to the manner in which the determination of the compensation was done by the Land Acquisition Officer and, in consequence, to its quantum. 12. The State, in the counter affidavit filed before the High Court, placed reliance on the order of the Central Government issued under Section 113 of the Act, 2013 and contended that the compensation payable to the appellant would be determined on the basis of market value as it was prevalent on 01.01.2014. 13. By impugned order, the High Court dismissed the writ petition. The High Court held that in view of the stand taken by the State in this case, that the compensation payable to the appellant would be determined on the basis of market value of the land in question as it was prevalent on 01.01.2014, nothing survives for deciding any question. The appellant was, however, granted liberty to claim reference to the competent authority for determination of the compensation under the Act, 2013 in accordance with law. 14. It is against this order of the High Court, the writ petitioner has felt aggrieved and filed this appeal by way of special leave in this Court. 15. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appellants writ petition and, if so, whether the reasoning of the High Court is legal, just and proper. 16. Heard Mr. Pallav Sisodia, learned senior counsel for the appellant and Mr. Tushar Mehta, learned Solicitor General for the respondents. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 18. As mentioned above, the High Court held that in the light of the stand taken by the State contending in their counter that the appropriate date for determining the market value of the appellants acquired land would be the date, which is declared by the Central Government, i.e., ?01.01.2014? and, therefore, the State would determine the compensation payable to the appellant accordingly. This order is not under challenge in these proceedings. 19. Indeed, once the State took a defense in this case that the compensation in the case of the appellant would be determined keeping in view 01.01.2014 to be the date as the basis, the appellant should feel satisfied with this stand. The apparent reason is that though the acquisition was made under the old Act in 2002 yet the appellant was held entitled to get compensation under the New Act, 2013 by taking 01.01.2014 as the base date for determination of the compensation. 20. We, therefore, find no good ground to accept the submission of the learned counsel for the appellant when he contended that the date for determining the compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013. 21. Indeed, how the compensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned counsel is not the date prescribed either in the old Act or the new Act. This submission has, therefore, no merit and deserves to be rejected. It is accordingly rejected. 22. We, therefore, find no good ground to take a different view than what was taken by the High Court in the impugned order. 23. As mentioned above, since the challenge to the acquisition proceedings was expressly given up by the appellant (writ petitioner) in the High Court, the High Court rightly did not decide this question. We also need not examine this question in the present appeal. | 1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.As mentioned above, the High Court held that in the light of the stand taken by the State contending in their counter that the appropriate date for determining the market value of the appellants acquired land would be the date, which is declared by the Central Government, i.e., ?01.01.2014? and, therefore, the State would determine the compensation payable to the appellant accordingly. This order is not under challenge in these proceedings.Indeed, once the State took a defense in this case that the compensation in the case of the appellant would be determined keeping in view 01.01.2014 to be the date as the basis, the appellant should feel satisfied with this stand. The apparent reason is that though the acquisition was made under the old Act in 2002 yet the appellant was held entitled to get compensation under the New Act, 2013 by taking 01.01.2014 as the base date for determination of the compensation.We, therefore, find no good ground to accept the submission of the learned counsel for the appellant when he contended that the date for determining the compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013.Indeed, how the compensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned counsel is not the date prescribed either in the old Act or the new Act. This submission has, therefore, no merit and deserves to be rejected. It is accordingly rejected.We, therefore, find no good ground to take a different view than what was taken by the High Court in the impugned order.As mentioned above, since the challenge to the acquisition proceedings was expressly given up by the appellant (writ petitioner) in the High Court, the High Court rightly did not decide this question. We also need not examine this question in the present appeal. | 1 | 1,227 | 410 | ### Instruction:
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herein was the writ petitioner whereas the respondents herein were the respondents in the writ petition filed before the High Court out of which this appeal arises. 5. In exercise of the powers conferred under Section 4 (1) of the Land Acquisition Act, 1894 (for short called ?the Act 1894?), the State of UP (respondent No.1 herein) issued a notification on 30.10.2002 (Annexure P-1) for acquisition of lands as detailed in the schedule to the notification. 6. The acquisition was for the public purpose, namely, construction of Varanasi Bye-Pass (Ring Road) in District Varanasi. The State, however, invoked the urgency clause under Section 17 and, therefore, dispensed with the inquiry as provided in Section 5-A of the Act, 1894. This was followed by a declaration made under Section 6 on 29.11.2003. The appellants land was acquired in these acquisition proceedings. 7. "The Act, 1894" was repealed on 01.01.2014 and was replaced by another Act called ?the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation And Resettlement Act, 2013? (for short called ?the Act, 2013?). The Act 2013 came into force on 01.01.2014. 8. The Land Acquisition Officer, however, passed an award on 30.06.2016 (Annexure P-4), i.e., after the repeal of the Act, 1894 in relation to the aforementioned lands by determining the compensation payable to the landowner (appellant herein) accordingly. 9. The appellant (writ petitioner) thereupon felt aggrieved by the entire acquisition proceedings including passing of the award dated 30.06.2016 and filed the writ petition in the Allahabad High Court challenging therein the validity and legality of the notification issued under Section 4 of the Act, 1894 dated 30.10.2002 as also the award dated 30.06.2016. 10. The main challenge of the appellant to the acquisition proceedings was that the entire acquisition proceedings initiated by the respondent-State on the strength of notification issued on 30.10.2002 under Section 4 of the Act, 1894 which eventually led to passing of the award on 30.06.2016, stood lapsed consequent upon the repeal of the Act, 1894. 11. It is pertinent to mention here that during the hearing before the High Court, the writ petitioner (appellant herein) expressly gave up his challenge to the acquisition proceedings and confined his challenge only to the manner in which the determination of the compensation was done by the Land Acquisition Officer and, in consequence, to its quantum. 12. The State, in the counter affidavit filed before the High Court, placed reliance on the order of the Central Government issued under Section 113 of the Act, 2013 and contended that the compensation payable to the appellant would be determined on the basis of market value as it was prevalent on 01.01.2014. 13. By impugned order, the High Court dismissed the writ petition. The High Court held that in view of the stand taken by the State in this case, that the compensation payable to the appellant would be determined on the basis of market value of the land in question as it was prevalent on 01.01.2014, nothing survives for deciding any question. The appellant was, however, granted liberty to claim reference to the competent authority for determination of the compensation under the Act, 2013 in accordance with law. 14. It is against this order of the High Court, the writ petitioner has felt aggrieved and filed this appeal by way of special leave in this Court. 15. The short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the appellants writ petition and, if so, whether the reasoning of the High Court is legal, just and proper. 16. Heard Mr. Pallav Sisodia, learned senior counsel for the appellant and Mr. Tushar Mehta, learned Solicitor General for the respondents. 17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 18. As mentioned above, the High Court held that in the light of the stand taken by the State contending in their counter that the appropriate date for determining the market value of the appellants acquired land would be the date, which is declared by the Central Government, i.e., ?01.01.2014? and, therefore, the State would determine the compensation payable to the appellant accordingly. This order is not under challenge in these proceedings. 19. Indeed, once the State took a defense in this case that the compensation in the case of the appellant would be determined keeping in view 01.01.2014 to be the date as the basis, the appellant should feel satisfied with this stand. The apparent reason is that though the acquisition was made under the old Act in 2002 yet the appellant was held entitled to get compensation under the New Act, 2013 by taking 01.01.2014 as the base date for determination of the compensation. 20. We, therefore, find no good ground to accept the submission of the learned counsel for the appellant when he contended that the date for determining the compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013. 21. Indeed, how the compensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned counsel is not the date prescribed either in the old Act or the new Act. This submission has, therefore, no merit and deserves to be rejected. It is accordingly rejected. 22. We, therefore, find no good ground to take a different view than what was taken by the High Court in the impugned order. 23. As mentioned above, since the challenge to the acquisition proceedings was expressly given up by the appellant (writ petitioner) in the High Court, the High Court rightly did not decide this question. We also need not examine this question in the present appeal.
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### Explanation:
17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.As mentioned above, the High Court held that in the light of the stand taken by the State contending in their counter that the appropriate date for determining the market value of the appellants acquired land would be the date, which is declared by the Central Government, i.e., ?01.01.2014? and, therefore, the State would determine the compensation payable to the appellant accordingly. This order is not under challenge in these proceedings.Indeed, once the State took a defense in this case that the compensation in the case of the appellant would be determined keeping in view 01.01.2014 to be the date as the basis, the appellant should feel satisfied with this stand. The apparent reason is that though the acquisition was made under the old Act in 2002 yet the appellant was held entitled to get compensation under the New Act, 2013 by taking 01.01.2014 as the base date for determination of the compensation.We, therefore, find no good ground to accept the submission of the learned counsel for the appellant when he contended that the date for determining the compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013.Indeed, how the compensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned counsel is not the date prescribed either in the old Act or the new Act. This submission has, therefore, no merit and deserves to be rejected. It is accordingly rejected.We, therefore, find no good ground to take a different view than what was taken by the High Court in the impugned order.As mentioned above, since the challenge to the acquisition proceedings was expressly given up by the appellant (writ petitioner) in the High Court, the High Court rightly did not decide this question. We also need not examine this question in the present appeal.
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STAR INDIA PRIVATE LIMITED Vs. DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION | of coming into of the revised Tariff Scheme at least before two months in advance and the same shall be posted on its website.” 62. At this juncture, it is of a little importance to compare and contrast Section 2(dd) of the Copyright Act with “broadcasting services” as defined in the impugned Regulation and Tariff Order. By Clause 2(j) of the impugned Regulation, “broadcasting services” is defined as follows: "2(j) “broadcasting services” means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly and all its grammatical variations and cognate expressions shall be construed accordingly;” 63. When the definitions of “broadcast” in Section 2(dd) of the Copyright Act and of “broadcasting services” in Clause 2(j) of the impugned Regulation are compared, what is clear is that the words “intended to be received by the general public either directly or indirectly” are completely missing from the definition of “broadcast” contained in the Copyright Act. Also, Section 52(1)(b) of the Copyright Act indicates that transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public is not an act that would constitute infringement of copyright. Section 52(1)(b) reads as follows: “52. Certain acts not to be infringement of copright.- (1) The following acts shall no constitute an infringement of copyright, namely:- xxx xxx xxx (b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;” 64. The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in the “work”, i.e. the original work, its broadcast and/or its re-broadcast by him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and the broadcaster’s right to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are non- discriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet or a-la-carte channels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to. In fact, Section 38 of the TRAI Act reads as under:- “38. Application of certain laws. – The provisions of this Act shall be in addition to the provisions of the Indian Telegraph Act, 1885 (13 of 1885) and the Indian Wireless Telegraphy Act, 1933 (17 of 1933) and, in particular, nothing in this Act shall affect any jurisdiction, powers and functions required to be exercised or performed by the Telegraph Authority in relation to any area falling within the jurisdiction of such Authority.” 66. Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned. | 0[ds]30. We are of the view that the provisions of the TRAI Act have to be viewed in the light of protection of the interests of both service providers and consumers. This being so, it is clear that no constricted meaning can be given to the provisions of this Act. It is important to remember that under Section 11(1)(a)(iv), one of the functions of the Authority, though recommendatory, is to facilitate competition and promote efficiency in the operation of telecommunication services (which includes broadcasting services) so as to facilitate growth in such services. What is also clear from Section 11(1)(b), is that terms and conditions of interconnectivity between different service providers have to be fixed, which necessarily includes terms that relate not only to carriage simpliciter as submitted by Dr. Singhvi, but to all terms and conditions of interconnectivity between broadcaster, MSO, Cable TV operator and the ultimate consumer, so as to ensure that the object of the Act is carried out, namely, that both broadcasters and consumers get a fair deal. Towards this end, Section 11(2) makes it clear that the Authority may, from time to time, notify the rates at which telecommunication services, including broadcasting services, within India and outside India, shall be provided under this Act. Dr. Singhvi argued that the literal language of thiswhich would undoubtedly bring in rates laid down in the Tariff Order, would have to be constricted by the language of the last part of the provision,the rates at which messages shall be transmitted to any country outsideWe are afraid that this is against basic canons of construction, as the expressionwould only refer to a part of what precedes the expression and cannot therefore constrict the part that has gone before. The plain literal language of Section 11(2) makes it clear that rates at which broadcasting services are offered within and outside India can be fixed by TRAI. It is clear therefore that when rates are fixed after several rounds of consultations between various service providers and consumers, looking to the interest of each, it is impossible to say that anyrights have been impinged upon. Shri Dwivedi is absolutely right in saying that at no stage is content of a TV channel sought to be regulated, and that pricing relating to TV channels laid down in the Regulation and Tariff Order is a balancing act between the rights of broadcasters and the interests of consumers, which we may hasten to add has not been impugned on the ground that any right or fundamental right is violated, but only on the ground that the Regulation as well as the Tariff Order are outside theof TRAI. Dr.argument on this score must therefore fail.It is only when TRAI issued a second consultation paper dated 4.5.2016 that Star India submitted its response in June, 2016 where it raised for the first time the issue relating to the Copyright Act as an afterthought. What is important to notice is that even in this response, Star India reiterated that discount caps should be provided for as this checks discriminatory behavior during negotiation and will facilitate designing of discount criteria based on intelligible differentia which will help serve the diverse needs of consumers. In a third response to the draft regulations and tariff order, Star India raised jurisdictional issues of TRAI.It can thus be seen that both the Regulation as well as the Tariff Order have been the subject matter of extensive discussions between TRAI, all stake holders and consumers, pursuant to which most of the suggestions given by the broadcasters themselves have been accepted and incorporated into the Regulation and the Tariff Order. The Explanatory Memorandum shows that the focus of the Authority has always been the provision of a level playing field to both broadcaster and subscriber. For example, when high discounts are offered for bouquets that are offered by the broadcasters, the effect is that subscribers are forced to take bouquets only, as thecarte rates of the pay channels that are found in these bouquets are much higher. This results in perverse pricing of bouquetsindividual pay channels. In the process, the public ends up paying for unwanted channels, thereby blocking newer and better TV channels and restrictingchoice. It is for this reason that discounts are capped. While doing so, however, full flexibility has been given to broadcasters to declare the prices of their pay channels on anbasis. The Authority has shown that it does not encroach upon the freedom of broadcasters to arrange their business as they choose. Also, when such discounts are limited, a subscriber can then be free to choosechannels of his choice. Thus, the flexibility of formation of a bouquet, i.e., the choice of channels to be included in the bouquet together with the content of such channels, is not touched by the Authority. It is only efforts aimed at thwarting competition and reducingcarte choice that are, therefore, being interfered with. Equally, when a ceiling of INR 19 on the maximum retail price of pay channels which can be provided as a part of a bouquet is fixed by the Authority, thefocus is to be fair to both the subscribers as well as the broadcasters. INR 19 is an improvement over the erstwhile ceiling of INR 15.12 fixed by the earlier regulation which nobody has challenged. To maintain the balance between theinterests, again the Authority makes it clear that broadcasters have complete freedom to price channels which do not form part of any bouquet and are offered only on ancarte basis. As market regulator, the Authority states that the impugned Regulation and Tariff Order are not written in stone but will be reviewed keeping a watch on the developments in the market. We are, therefore, clearly of the view that the Regulation and the Tariff Order have been made keeping the interests of the stakeholders and the consumers in mind and are intra vires the regulation power contained in Section 36 of the TRAI Act. Consequently, we agree with the conclusion of the learned Chief Justice and the third learned Judge of the Madras High Court that these writ petitions deserve to be dismissed.Shri Dwivedi is therefore right that the object of the Sports Act has nothing to do with the validity of the Regulation and Tariff Order made by TRAI under the TRAI Act. Content is referred to in the Sports Act only for the reason stated in the Objects and Reasons. Secondly, as has correctly been argued by Shri Dwivedi and as has been held by us above, the TRAI Act, as well as the Regulation and Tariff Order, do not in any manner affect the content of the TV channels that are broadcast by the broadcasters in these cases.A reading of the aforesaid provisions, according to the learned Senior Advocates for the appellants, makes it clear that broadcasters may, in fact, be the owners of the original copyright of a work – for example, if they themselves have produced a serial. They may also be the copyright owners of the broadcast of this serial which is a separate right under the Copyright Act which they are able to exploit, and if there is a rebroadcast of what has already been copyrighted, this again is protected by Chapter VIII of the Copyright Act. The argument, therefore, is that content that is carried by transmission from the broadcasters to the ultimate consumer is, therefore, regulated only by the Copyright Act and any royalties that can be charged for exploitation of the three rights as aforesaid are governed only by the Copyright Act. Further, the right to band themselves into a society is by virtue of Section 33, which mutatis mutandis applies to broadcasters alone. The tariff, therefore, that may be charged under Section 33A of the Copyright Act read with Rule 56 of the Copyright Rules is nothing but compensation that is payable to broadcasters for parting with their copyright in the manner indicated above. This being the case, when TRAI fixes rates and/or interferes with content, it is trespassing into the exclusive domain set out by Parliament under the Copyright Act. Since the TRAI Act and the Copyright Act, both being Acts passed by Parliament, have to be harmonised, such harmony can only be maintained if TRAI is kept out altogether from the domain covered by the Copyright Act.The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in thei.e. the original work, its broadcast and/or itsby him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and theright to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet orchannels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to.Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned. | 0 | 29,487 | 2,212 | ### Instruction:
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of coming into of the revised Tariff Scheme at least before two months in advance and the same shall be posted on its website.” 62. At this juncture, it is of a little importance to compare and contrast Section 2(dd) of the Copyright Act with “broadcasting services” as defined in the impugned Regulation and Tariff Order. By Clause 2(j) of the impugned Regulation, “broadcasting services” is defined as follows: "2(j) “broadcasting services” means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly and all its grammatical variations and cognate expressions shall be construed accordingly;” 63. When the definitions of “broadcast” in Section 2(dd) of the Copyright Act and of “broadcasting services” in Clause 2(j) of the impugned Regulation are compared, what is clear is that the words “intended to be received by the general public either directly or indirectly” are completely missing from the definition of “broadcast” contained in the Copyright Act. Also, Section 52(1)(b) of the Copyright Act indicates that transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public is not an act that would constitute infringement of copyright. Section 52(1)(b) reads as follows: “52. Certain acts not to be infringement of copright.- (1) The following acts shall no constitute an infringement of copyright, namely:- xxx xxx xxx (b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;” 64. The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in the “work”, i.e. the original work, its broadcast and/or its re-broadcast by him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and the broadcaster’s right to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are non- discriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet or a-la-carte channels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to. In fact, Section 38 of the TRAI Act reads as under:- “38. Application of certain laws. – The provisions of this Act shall be in addition to the provisions of the Indian Telegraph Act, 1885 (13 of 1885) and the Indian Wireless Telegraphy Act, 1933 (17 of 1933) and, in particular, nothing in this Act shall affect any jurisdiction, powers and functions required to be exercised or performed by the Telegraph Authority in relation to any area falling within the jurisdiction of such Authority.” 66. Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned.
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these writ petitions deserve to be dismissed.Shri Dwivedi is therefore right that the object of the Sports Act has nothing to do with the validity of the Regulation and Tariff Order made by TRAI under the TRAI Act. Content is referred to in the Sports Act only for the reason stated in the Objects and Reasons. Secondly, as has correctly been argued by Shri Dwivedi and as has been held by us above, the TRAI Act, as well as the Regulation and Tariff Order, do not in any manner affect the content of the TV channels that are broadcast by the broadcasters in these cases.A reading of the aforesaid provisions, according to the learned Senior Advocates for the appellants, makes it clear that broadcasters may, in fact, be the owners of the original copyright of a work – for example, if they themselves have produced a serial. They may also be the copyright owners of the broadcast of this serial which is a separate right under the Copyright Act which they are able to exploit, and if there is a rebroadcast of what has already been copyrighted, this again is protected by Chapter VIII of the Copyright Act. The argument, therefore, is that content that is carried by transmission from the broadcasters to the ultimate consumer is, therefore, regulated only by the Copyright Act and any royalties that can be charged for exploitation of the three rights as aforesaid are governed only by the Copyright Act. Further, the right to band themselves into a society is by virtue of Section 33, which mutatis mutandis applies to broadcasters alone. The tariff, therefore, that may be charged under Section 33A of the Copyright Act read with Rule 56 of the Copyright Rules is nothing but compensation that is payable to broadcasters for parting with their copyright in the manner indicated above. This being the case, when TRAI fixes rates and/or interferes with content, it is trespassing into the exclusive domain set out by Parliament under the Copyright Act. Since the TRAI Act and the Copyright Act, both being Acts passed by Parliament, have to be harmonised, such harmony can only be maintained if TRAI is kept out altogether from the domain covered by the Copyright Act.The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in thei.e. the original work, its broadcast and/or itsby him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and theright to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet orchannels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to.Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned.
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BHARAT BHUSHAN GUPTA Vs. PRATAP NARAIN VERMA & ANR | 1 in any manner whatsoever. The said decision related with a suit for rendition of accounts, which is one of the species of the suits envisaged by clause (iv) of Section 7 of the Court Fees Act. Even in that context, this Court, inter alia, observed that the plaintiffs assessment in such a plaint about the amount due to his share was a guesswork in the absence of any cogent material and would not constitute objective standard of valuation. This Court explained the principles governing the valuation of the suits falling under Section 7(iv) of the Court Fees Act in the following terms: 7. So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act. It has already been noticed that under Rule 4(i) of the Punjab High Court Rules, the value of suit for accounts for purposes of court fee will be as determined by the Court Fees Act, which means that the valuation of the relief will have to be made by the plaintiff under Section 7(iv)(f) of the Court Fees Act. 11.1. The observations occurring in paragraph 13 of the said decision, which are sought to be relied upon by the contesting respondent, read as under: - 13. But, there may be cases under Section 7(iv) where certain positive objective standard may be available for the purpose of determination of the valuation of the relief. If there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, in our opinion, is entitled to interfere under Order VII, Rule 11(b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. In Urmilabala Biswas, v. Binapani Biswas [AIR 1938 Cal 161 : 42 CWN 192: 177 1C 893] a suit was instituted for declaration of title to provident fund money amounting to a definite sum with a prayer for injunction restraining the defendant from withdrawing the said money. It was held that there was no real distinction between the right to recover money and the right to that money itself, and that the relief should have been valued at the provident fund amount to which title was claimed by the plaintiff. Thus, it appears that although in that case the suit was one under Section 7(iv) (c) of the Court Fees Act, there was an objective standard which would enable the plaintiff and the court too to value the relief correctly and, in such a case, the court would be competent to direct the plaintiff to value the relief accordingly. 11.2. These observations were, in fact, taken note of by the High Court in the impugned judgment too but they cannot be read to mean that in a suit for mandatory injunction concerning a property and thereby seeking certain mandates over the acts/omissions of the defendant, the suit is required to be valued as per the market value of the property. Such a proposition, for suit valuation on the market value of the property involved, irrespective of the nature of relief claimed, if accepted, would render the whole scheme of the Court Fees Act concerning suit valuation with reference to the nature of relief going haywire. This argument is required to be rejected. 12. The decision of the Full Bench of Delhi High Court in the case of Mahant Purushottam Dass (supra) has also been unnecessarily cited. The suit therein was for declaration and perpetual injunction where the Court found that the plaintiff could not have asked for the relief of injunction without seeking declaration and the suit, on its nature, was held to be governed by clause (v) of the Section 7 of the Court Fees Act. The said decision has no relevance or application to the present case. 13. Before concluding, we may also observe that the submission made on behalf of respondent No. 1 concerning want of framing of the necessary issues by the Trial Court despite his prayer does not require much comments. This is for the simple reason that irrespective of the issues framed, the respondent No. 1, while contesting the suit, chose to raise the objection regarding suit valuation and jurisdiction of the Trial Court by way of the application under Order VII Rule 11 CPC during the course of cross-examination of the plaintiff. That application was rightly rejected by the Trial Court. The High Courts decision to the contrary is not being approved by us. That being the position, the contention about want of framing of issues does not hold water any more. 14. For what has been discussed hereinabove, we may simply put the upshot in other words that the High Court has totally omitted to consider the applicable provision of law i.e., Section 7(iv)(d) of the Court Fees Act as also the principles of law stated in the very same decision being referred to and relied upon in the impugned order itself. Thus, the impugned order deserves to be set aside. | 1[ds]7. Having given thoughtful consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are clearly of the view that the impugned order dated 18.03.2019, as passed by the High Court with reference to the statement made by the plaintiff in his cross-examination on the value of the suit property, does not stand in conformity with law and cannot be sustained.9. The nature of the present suit, as noticed hereinabove, makes it evident on the face of record that the plaintiff-appellant has sought the reliefs of mandatory injunction against the defendants for removing themselves and their belongings from the plot in question, while alleging that the defendants were in occupation thereof only as licensees; and were obliged to remove themselves after termination of respective licenses. The plaintiff has also prayed for the relief of perpetual prohibitory injunction that the defendants may not create any third-party rights in the suit property or raise any construction thereon. The plaintiff has valued the suit for the purpose of Court fees and jurisdiction at Rs. 250 for each of the reliefs for injunction and at Rs. 1 lakh for damages; and has paid the Court fees accordingly.9.1. It remains trite that it is the nature of relief claimed in the plaint which is decisive of the question of suit valuation. As a necessary corollary, the market value does not become decisive of suit valuation merely because an immovable property is the subject-matter of litigation. The market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed.9.2. So far as the present suit is concerned, the plaintiff has alleged the defendants to be the licensees and has sought mandatory injunction obliging them to remove themselves and their belongings. Not much of discussion is required to find that with such pleadings, claim of relief of mandatory injunction is not unknown to the legal process. For ready reference, we may refer to the relevant passage from the decision in Maria Margarida Sequeira Fernandes (supra) as under: -65. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.9.3. Further in the case of Sant Lal Jain (supra), this Court referred to a decision of the Jammu & Kashmir High Court (In the case of Milka Singh v. Diana: AIR 1964 J & K 99) with approval and held as under: -…In Milka Singh v. Diana AIR 1964 J & K 99, it has been observed that the principle that once a licencee always a licensee would apply to all kinds of licenses and that it cannot be said that the moment the licence is terminated, the licensees possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under S. 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict a licensee has always been held to be maintainable.…where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7 (v) of the Court-Fees Act.7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.9.4. In fact, in the case of Mulk Raj Khullar (supra) as referred by the High Court in its impugned order, the aforesaid decision in Sant Lal Jain as also another decision in the case of Joseph Severance & Ors. v. Benny Mathew & Ors.: (2005) 7 SCC 667 were taken note of and the High Court concluded as follows: -16. The legal position that follows is that where a suit is filed with promptitude against a licensee whose license is terminated, a Suit for mandatory injunction is maintainable…..9.5. The aforesaid discussion as regards maintainability of suit for mandatory injunction does not require much elaboration for the settled position of law as also for the relevant fact that even in the order impugned, the High Court has not stated anything to the contrary, so far as the question of maintainability of the suit seeking relief of mandatory injunction is concerned. The High Court rather placed this aspect of the matter beyond the pale of doubt while observing, after its extensive reference to the various decisions, that the facts of the present case and that of the case of Mulk Raj Khullar (supra) were in pari materia. To this extent, the consideration of the High Court had been in tune with the applicable legal principles. However, immediately on the next step, the High Court, with respect, committed serious error by referring to a passage in Mulk Raj Khullars case in isolation and detached from the substance, where the Court had indicated want of any argument about whimsical valuation. That observation in paragraph 30 in the decision of Mulk Raj Khullars case came in the context of observations in another decision of Delhi High Court in the case of Padmavati Mahajan v. Yogender Mahajan & Anr.: (2008) 152 DLT 363, wherein the Court had observed that a suit for injunction could be valued by the plaintiff in his/her discretion subject to the condition that such discretion ought not to be whimsical. The use of generalised expression whimsical, without specifications, has been picked up by the High Court in the impugned order and then, the market value of the plot in question, as stated by the plaintiff in his cross-examination, has been taken by the Court to be indicative of arbitrariness in valuation. With respect, the High Court even missed out the relevant statement of law in the very passage reproduced in Mulk Raj Khullar, wherein it was stated in clear terms that such a suit was not required to be valued at the market value of the property.10. The High Court has not even considered the overall circumstances of the present case where the plaintiff has valued the reliefs of mandatory and prohibitory injunction at the nominal Rs. 250 but, at the same time, has also valued the suit with reference to the claim of damages at Rs. 1 lakh and had paid the Court fees accordingly. It is apparent on the face of the record that despite unquestionable principle of law that such a suit for mandatory and prohibitory injunction is not required to be valued at the market value of the property, the High Court has relied only upon the market value of the property to hold the valuation of the present suit to be arbitrary. Such a conclusion of the High Court neither stands in conformity with law nor with the frame and the nature of the present suit.11. The decision in the case of Commercial Aviation (supra) does not further the cause of the respondent No. 1 in any manner whatsoever. The said decision related with a suit for rendition of accounts, which is one of the species of the suits envisaged by clause (iv) of Section 7 of the Court Fees Act. Even in that context, this Court, inter alia, observed that the plaintiffs assessment in such a plaint about the amount due to his share was a guesswork in the absence of any cogent material and would not constitute objective standard of valuation. This Court explained the principles governing the valuation of the suits falling under Section 7(iv) of the Court Fees Act in the following terms:7. So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act. It has already been noticed that under Rule 4(i) of the Punjab High Court Rules, the value of suit for accounts for purposes of court fee will be as determined by the Court Fees Act, which means that the valuation of the relief will have to be made by the plaintiff under Section 7(iv)(f) of the Court Fees Act.11.1. The observations occurring in paragraph 13 of the said decision, which are sought to be relied upon by the contesting respondent, read as under: -13. But, there may be cases under Section 7(iv) where certain positive objective standard may be available for the purpose of determination of the valuation of the relief. If there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, in our opinion, is entitled to interfere under Order VII, Rule 11(b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. In Urmilabala Biswas, v. Binapani Biswas [AIR 1938 Cal 161 : 42 CWN 192: 177 1C 893] a suit was instituted for declaration of title to provident fund money amounting to a definite sum with a prayer for injunction restraining the defendant from withdrawing the said money. It was held that there was no real distinction between the right to recover money and the right to that money itself, and that the relief should have been valued at the provident fund amount to which title was claimed by the plaintiff. Thus, it appears that although in that case the suit was one under Section 7(iv) (c) of the Court Fees Act, there was an objective standard which would enable the plaintiff and the court too to value the relief correctly and, in such a case, the court would be competent to direct the plaintiff to value the relief accordingly.11.2. These observations were, in fact, taken note of by the High Court in the impugned judgment too but they cannot be read to mean that in a suit for mandatory injunction concerning a property and thereby seeking certain mandates over the acts/omissions of the defendant, the suit is required to be valued as per the market value of the property. Such a proposition, for suit valuation on the market value of the property involved, irrespective of the nature of relief claimed, if accepted, would render the whole scheme of the Court Fees Act concerning suit valuation with reference to the nature of relief going haywire. This argument is required to be rejected.12. The decision of the Full Bench of Delhi High Court in the case of Mahant Purushottam Dass (supra) has also been unnecessarily cited. The suit therein was for declaration and perpetual injunction where the Court found that the plaintiff could not have asked for the relief of injunction without seeking declaration and the suit, on its nature, was held to be governed by clause (v) of the Section 7 of the Court Fees Act. The said decision has no relevance or application to the present case.13. Before concluding, we may also observe that the submission made on behalf of respondent No. 1 concerning want of framing of the necessary issues by the Trial Court despite his prayer does not require much comments. This is for the simple reason that irrespective of the issues framed, the respondent No. 1, while contesting the suit, chose to raise the objection regarding suit valuation and jurisdiction of the Trial Court by way of the application under Order VII Rule 11 CPC during the course of cross-examination of the plaintiff. That application was rightly rejected by the Trial Court. The High Courts decision to the contrary is not being approved by us. That being the position, the contention about want of framing of issues does not hold water any more.14. For what has been discussed hereinabove, we may simply put the upshot in other words that the High Court has totally omitted to consider the applicable provision of law i.e., Section 7(iv)(d) of the Court Fees Act as also the principles of law stated in the very same decision being referred to and relied upon in the impugned order itself. Thus, the impugned order deserves to be set aside. | 1 | 6,891 | 2,688 | ### 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:
1 in any manner whatsoever. The said decision related with a suit for rendition of accounts, which is one of the species of the suits envisaged by clause (iv) of Section 7 of the Court Fees Act. Even in that context, this Court, inter alia, observed that the plaintiffs assessment in such a plaint about the amount due to his share was a guesswork in the absence of any cogent material and would not constitute objective standard of valuation. This Court explained the principles governing the valuation of the suits falling under Section 7(iv) of the Court Fees Act in the following terms: 7. So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act. It has already been noticed that under Rule 4(i) of the Punjab High Court Rules, the value of suit for accounts for purposes of court fee will be as determined by the Court Fees Act, which means that the valuation of the relief will have to be made by the plaintiff under Section 7(iv)(f) of the Court Fees Act. 11.1. The observations occurring in paragraph 13 of the said decision, which are sought to be relied upon by the contesting respondent, read as under: - 13. But, there may be cases under Section 7(iv) where certain positive objective standard may be available for the purpose of determination of the valuation of the relief. If there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, in our opinion, is entitled to interfere under Order VII, Rule 11(b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. In Urmilabala Biswas, v. Binapani Biswas [AIR 1938 Cal 161 : 42 CWN 192: 177 1C 893] a suit was instituted for declaration of title to provident fund money amounting to a definite sum with a prayer for injunction restraining the defendant from withdrawing the said money. It was held that there was no real distinction between the right to recover money and the right to that money itself, and that the relief should have been valued at the provident fund amount to which title was claimed by the plaintiff. Thus, it appears that although in that case the suit was one under Section 7(iv) (c) of the Court Fees Act, there was an objective standard which would enable the plaintiff and the court too to value the relief correctly and, in such a case, the court would be competent to direct the plaintiff to value the relief accordingly. 11.2. These observations were, in fact, taken note of by the High Court in the impugned judgment too but they cannot be read to mean that in a suit for mandatory injunction concerning a property and thereby seeking certain mandates over the acts/omissions of the defendant, the suit is required to be valued as per the market value of the property. Such a proposition, for suit valuation on the market value of the property involved, irrespective of the nature of relief claimed, if accepted, would render the whole scheme of the Court Fees Act concerning suit valuation with reference to the nature of relief going haywire. This argument is required to be rejected. 12. The decision of the Full Bench of Delhi High Court in the case of Mahant Purushottam Dass (supra) has also been unnecessarily cited. The suit therein was for declaration and perpetual injunction where the Court found that the plaintiff could not have asked for the relief of injunction without seeking declaration and the suit, on its nature, was held to be governed by clause (v) of the Section 7 of the Court Fees Act. The said decision has no relevance or application to the present case. 13. Before concluding, we may also observe that the submission made on behalf of respondent No. 1 concerning want of framing of the necessary issues by the Trial Court despite his prayer does not require much comments. This is for the simple reason that irrespective of the issues framed, the respondent No. 1, while contesting the suit, chose to raise the objection regarding suit valuation and jurisdiction of the Trial Court by way of the application under Order VII Rule 11 CPC during the course of cross-examination of the plaintiff. That application was rightly rejected by the Trial Court. The High Courts decision to the contrary is not being approved by us. That being the position, the contention about want of framing of issues does not hold water any more. 14. For what has been discussed hereinabove, we may simply put the upshot in other words that the High Court has totally omitted to consider the applicable provision of law i.e., Section 7(iv)(d) of the Court Fees Act as also the principles of law stated in the very same decision being referred to and relied upon in the impugned order itself. Thus, the impugned order deserves to be set aside.
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further the cause of the respondent No. 1 in any manner whatsoever. The said decision related with a suit for rendition of accounts, which is one of the species of the suits envisaged by clause (iv) of Section 7 of the Court Fees Act. Even in that context, this Court, inter alia, observed that the plaintiffs assessment in such a plaint about the amount due to his share was a guesswork in the absence of any cogent material and would not constitute objective standard of valuation. This Court explained the principles governing the valuation of the suits falling under Section 7(iv) of the Court Fees Act in the following terms:7. So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act. It has already been noticed that under Rule 4(i) of the Punjab High Court Rules, the value of suit for accounts for purposes of court fee will be as determined by the Court Fees Act, which means that the valuation of the relief will have to be made by the plaintiff under Section 7(iv)(f) of the Court Fees Act.11.1. The observations occurring in paragraph 13 of the said decision, which are sought to be relied upon by the contesting respondent, read as under: -13. But, there may be cases under Section 7(iv) where certain positive objective standard may be available for the purpose of determination of the valuation of the relief. If there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the court, in our opinion, is entitled to interfere under Order VII, Rule 11(b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. In Urmilabala Biswas, v. Binapani Biswas [AIR 1938 Cal 161 : 42 CWN 192: 177 1C 893] a suit was instituted for declaration of title to provident fund money amounting to a definite sum with a prayer for injunction restraining the defendant from withdrawing the said money. It was held that there was no real distinction between the right to recover money and the right to that money itself, and that the relief should have been valued at the provident fund amount to which title was claimed by the plaintiff. Thus, it appears that although in that case the suit was one under Section 7(iv) (c) of the Court Fees Act, there was an objective standard which would enable the plaintiff and the court too to value the relief correctly and, in such a case, the court would be competent to direct the plaintiff to value the relief accordingly.11.2. These observations were, in fact, taken note of by the High Court in the impugned judgment too but they cannot be read to mean that in a suit for mandatory injunction concerning a property and thereby seeking certain mandates over the acts/omissions of the defendant, the suit is required to be valued as per the market value of the property. Such a proposition, for suit valuation on the market value of the property involved, irrespective of the nature of relief claimed, if accepted, would render the whole scheme of the Court Fees Act concerning suit valuation with reference to the nature of relief going haywire. This argument is required to be rejected.12. The decision of the Full Bench of Delhi High Court in the case of Mahant Purushottam Dass (supra) has also been unnecessarily cited. The suit therein was for declaration and perpetual injunction where the Court found that the plaintiff could not have asked for the relief of injunction without seeking declaration and the suit, on its nature, was held to be governed by clause (v) of the Section 7 of the Court Fees Act. The said decision has no relevance or application to the present case.13. Before concluding, we may also observe that the submission made on behalf of respondent No. 1 concerning want of framing of the necessary issues by the Trial Court despite his prayer does not require much comments. This is for the simple reason that irrespective of the issues framed, the respondent No. 1, while contesting the suit, chose to raise the objection regarding suit valuation and jurisdiction of the Trial Court by way of the application under Order VII Rule 11 CPC during the course of cross-examination of the plaintiff. That application was rightly rejected by the Trial Court. The High Courts decision to the contrary is not being approved by us. That being the position, the contention about want of framing of issues does not hold water any more.14. For what has been discussed hereinabove, we may simply put the upshot in other words that the High Court has totally omitted to consider the applicable provision of law i.e., Section 7(iv)(d) of the Court Fees Act as also the principles of law stated in the very same decision being referred to and relied upon in the impugned order itself. Thus, the impugned order deserves to be set aside.
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MURALI ALIAS DHANANJAYAN Vs. STATE OF KERALA | INDU MALHOTRA, J. 1. The present Civil Appeal pertains to an area of 30.1 Ares of land comprising of 28.89 Ares of wet land and 1.21 Ares of dry land situated in Survey No. 166/5-5 in Cherthala North Village, Kerala owned by the Appellant, which was acquired vide Notification issued under Section 4(1) of the Land Acquisition Act, 1894 on 11.05.1981. The land was acquired for the public purpose of construction of the Ernakulam-Alappuzha Kayanukulam BG railway line. 2. The land of the father of the Appellant comprised in Survey No. 166/9-A, as also the land of his brother viz. Sugandhan Sanu comprised in Survey No. 166/1A-4 were acquired by the same Notification. 3. Possession of the lands was taken on 09.11.1981. The Land Acquisition Officer vide Award dated 05.04.1982 determined the compensation of these lands at Rs. 454 per Are for wet land, and Rs.2,137 per Are for dry land. On 29.04.1982, the Appellant-landowner was paid an amount of Rs.18,764.30 towards compensation. 4. The Appellant herein filed Reference Petition bearing L.A.R. No. 23/97 before the Court of Subordinate Judge, Cherthala. Similar Reference Petitions were filed by the father of the Appellant being L.A.R. No. 25/97, and the brother of the Appellant being L.A.R. No. 22/97 before the Subordinate Court. 5. The Reference Court vide judgment and order dated 14.03.2001 passed in L.A.R. No. 25/97 filed by the Appellants father, enhanced the compensation to Rs.8,500 per Are. 6. Subsequently, in Reference Petition being L.A.R. No. 22/97 filed by the brother-Sugadhan Sanu, the Court of Subordinate Judge, Cherthala placing reliance on the judgment dated 14.03.2001 passed in the fathers case, enhanced the compensation for the land of the brother comprising of 22.80 Ares to Rs.8,500 per Are, after deducting the amount which had already been paid. The Subordinate Court granted Solatium @ 30% of the amount awarded, and other benefits under Section 23(1A) and Section 28 of the Land Acquisition Act, 1894, as well as half of the costs incurred in the proceedings. The applicant was also granted Interest @ 12% p.a. for the period commencing from 11.05.1981 till 09.11.1981, and Interest @ 9% p.a. for a period of one year from 10.11.1981 to 09.11.1982, and thereafter at the rate of 15% p.a. till the date of realisation of the aggregate amount. 7. In the case of the Appellant, the Reference Petition being L.A.R. No. 23/97 filed on his behalf was taken up for hearing on 02.08.2001. However, since no lawyer represented him before the Court, it was recorded that the amount fixed by the Land Acquisition Officer was adequate, and the Reference was answered accordingly. 8. Aggrieved by the Order dated 02.08.2001, the Appellant filed I.A. No. 263/2004 seeking restoration of his Reference Petition on the ground that his counsel could not appear on the date of hearing. The Reference Court dismissed the Application for restoration of the Reference Petition. 9. The Appellant filed W.P. (C) No. 10902/2006 before the Kerala High Court to challenge the Order of the Reference Court dated 02.08.2001, and the Order dismissing the Application for Restoration. The High Court vide Order dated 17.10.2007 set aside the Order of the Reference Court dated 02.08.2001, and restored L.A.R. No. 23/97 to the file of the Court of the Subordinate Judge, Cherthala. The learned Subordinate Judge was directed to decide the matter after giving an opportunity of hearing and liberty to adduce evidence to both the claimant and the Government, and decide it in accordance with law. 10. On remand, the Reference Court vide order dated 28.03.2008 once again held that the Reference Application was barred by limitation, since it was filed beyond six months from the date of the knowledge of the Collectors Award. In these circumstances, the Court held that it was not bound to answer the Reference, and declined to answer the same. 11. Aggrieved by the aforesaid Judgment, the present Appellant then filed W.P. (C) No. 29939/2008 before the High Court of Kerala. The High Court vide the impugned order held that in the absence of any convincing explanation from the side of the Appellant regarding the inordinate delay of 15 years, it would not be proper to interfere with the reasoned order passed by the Subordinate Judge. 12. Aggrieved by the said judgment, the Appellant has filed the present Appeal before this Court. We have heard the learned counsel for the parties and perused the impugned judgment and the documents placed on record. 13. From a perusal of the records, we find that the Reference Court had awarded an amount of Rs. 8,500 per Are for the lands owned by the father and brother of the Appellant under the same Notification. The land owned by all three parties is comprised in the same Survey No. 166. 14. The Reference Petitions in all the three cases were filed by the Appellant, his father, and his brother contemporaneously in the year 1997, to challenge the Award passed by the Land Acquisition Officer. The Appellant relies on Section 28(A) of the Land Acquisition Act, 1894 to submit that the Act conferred a right on persons interested whose lands were acquired by a common Notification, to claim re-determination of the compensation in accordance with the enhanced compensation awarded by the Civil Court to other land owners. 15. We find that the Reference Court has not even adverted to the earlier judgments passed by the same Court in L.A.R. No. 25/1997 filed by the father, and L.A.R. No. 22/97 filed by the brother of the Appellant, wherein a uniform rate of Rs. 8,500 per Are was granted. The Reference Court did not hold that the delay in filing the Reference Petitions in the case of the father and the brother of the Appellant was a ground to deny them relief. The land belonging to the Appellant is similarly situated in the same Survey No. 166. | 1[ds]13. From a perusal of the records, we find that the Reference Court had awarded an amount of Rs. 8,500 per Are for the lands owned by the father and brother of the Appellant under the same Notification. The land owned by all three parties is comprised in the same Survey No. 166.14. The Reference Petitions in all the three cases were filed by the Appellant, his father, and his brother contemporaneously in the year 1997, to challenge the Award passed by the Land Acquisition Officer.15. We find that the Reference Court has not even adverted to the earlier judgments passed by the same Court in L.A.R. No. 25/1997 filed by the father, and L.A.R. No. 22/97 filed by the brother of the Appellant, wherein a uniform rate of Rs. 8,500 per Are was granted. The Reference Court did not hold that the delay in filing the Reference Petitions in the case of the father and the brother of the Appellant was a ground to deny them relief. The land belonging to the Appellant is similarly situated in the same Survey No. 166. | 1 | 1,122 | 208 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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INDU MALHOTRA, J. 1. The present Civil Appeal pertains to an area of 30.1 Ares of land comprising of 28.89 Ares of wet land and 1.21 Ares of dry land situated in Survey No. 166/5-5 in Cherthala North Village, Kerala owned by the Appellant, which was acquired vide Notification issued under Section 4(1) of the Land Acquisition Act, 1894 on 11.05.1981. The land was acquired for the public purpose of construction of the Ernakulam-Alappuzha Kayanukulam BG railway line. 2. The land of the father of the Appellant comprised in Survey No. 166/9-A, as also the land of his brother viz. Sugandhan Sanu comprised in Survey No. 166/1A-4 were acquired by the same Notification. 3. Possession of the lands was taken on 09.11.1981. The Land Acquisition Officer vide Award dated 05.04.1982 determined the compensation of these lands at Rs. 454 per Are for wet land, and Rs.2,137 per Are for dry land. On 29.04.1982, the Appellant-landowner was paid an amount of Rs.18,764.30 towards compensation. 4. The Appellant herein filed Reference Petition bearing L.A.R. No. 23/97 before the Court of Subordinate Judge, Cherthala. Similar Reference Petitions were filed by the father of the Appellant being L.A.R. No. 25/97, and the brother of the Appellant being L.A.R. No. 22/97 before the Subordinate Court. 5. The Reference Court vide judgment and order dated 14.03.2001 passed in L.A.R. No. 25/97 filed by the Appellants father, enhanced the compensation to Rs.8,500 per Are. 6. Subsequently, in Reference Petition being L.A.R. No. 22/97 filed by the brother-Sugadhan Sanu, the Court of Subordinate Judge, Cherthala placing reliance on the judgment dated 14.03.2001 passed in the fathers case, enhanced the compensation for the land of the brother comprising of 22.80 Ares to Rs.8,500 per Are, after deducting the amount which had already been paid. The Subordinate Court granted Solatium @ 30% of the amount awarded, and other benefits under Section 23(1A) and Section 28 of the Land Acquisition Act, 1894, as well as half of the costs incurred in the proceedings. The applicant was also granted Interest @ 12% p.a. for the period commencing from 11.05.1981 till 09.11.1981, and Interest @ 9% p.a. for a period of one year from 10.11.1981 to 09.11.1982, and thereafter at the rate of 15% p.a. till the date of realisation of the aggregate amount. 7. In the case of the Appellant, the Reference Petition being L.A.R. No. 23/97 filed on his behalf was taken up for hearing on 02.08.2001. However, since no lawyer represented him before the Court, it was recorded that the amount fixed by the Land Acquisition Officer was adequate, and the Reference was answered accordingly. 8. Aggrieved by the Order dated 02.08.2001, the Appellant filed I.A. No. 263/2004 seeking restoration of his Reference Petition on the ground that his counsel could not appear on the date of hearing. The Reference Court dismissed the Application for restoration of the Reference Petition. 9. The Appellant filed W.P. (C) No. 10902/2006 before the Kerala High Court to challenge the Order of the Reference Court dated 02.08.2001, and the Order dismissing the Application for Restoration. The High Court vide Order dated 17.10.2007 set aside the Order of the Reference Court dated 02.08.2001, and restored L.A.R. No. 23/97 to the file of the Court of the Subordinate Judge, Cherthala. The learned Subordinate Judge was directed to decide the matter after giving an opportunity of hearing and liberty to adduce evidence to both the claimant and the Government, and decide it in accordance with law. 10. On remand, the Reference Court vide order dated 28.03.2008 once again held that the Reference Application was barred by limitation, since it was filed beyond six months from the date of the knowledge of the Collectors Award. In these circumstances, the Court held that it was not bound to answer the Reference, and declined to answer the same. 11. Aggrieved by the aforesaid Judgment, the present Appellant then filed W.P. (C) No. 29939/2008 before the High Court of Kerala. The High Court vide the impugned order held that in the absence of any convincing explanation from the side of the Appellant regarding the inordinate delay of 15 years, it would not be proper to interfere with the reasoned order passed by the Subordinate Judge. 12. Aggrieved by the said judgment, the Appellant has filed the present Appeal before this Court. We have heard the learned counsel for the parties and perused the impugned judgment and the documents placed on record. 13. From a perusal of the records, we find that the Reference Court had awarded an amount of Rs. 8,500 per Are for the lands owned by the father and brother of the Appellant under the same Notification. The land owned by all three parties is comprised in the same Survey No. 166. 14. The Reference Petitions in all the three cases were filed by the Appellant, his father, and his brother contemporaneously in the year 1997, to challenge the Award passed by the Land Acquisition Officer. The Appellant relies on Section 28(A) of the Land Acquisition Act, 1894 to submit that the Act conferred a right on persons interested whose lands were acquired by a common Notification, to claim re-determination of the compensation in accordance with the enhanced compensation awarded by the Civil Court to other land owners. 15. We find that the Reference Court has not even adverted to the earlier judgments passed by the same Court in L.A.R. No. 25/1997 filed by the father, and L.A.R. No. 22/97 filed by the brother of the Appellant, wherein a uniform rate of Rs. 8,500 per Are was granted. The Reference Court did not hold that the delay in filing the Reference Petitions in the case of the father and the brother of the Appellant was a ground to deny them relief. The land belonging to the Appellant is similarly situated in the same Survey No. 166.
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13. From a perusal of the records, we find that the Reference Court had awarded an amount of Rs. 8,500 per Are for the lands owned by the father and brother of the Appellant under the same Notification. The land owned by all three parties is comprised in the same Survey No. 166.14. The Reference Petitions in all the three cases were filed by the Appellant, his father, and his brother contemporaneously in the year 1997, to challenge the Award passed by the Land Acquisition Officer.15. We find that the Reference Court has not even adverted to the earlier judgments passed by the same Court in L.A.R. No. 25/1997 filed by the father, and L.A.R. No. 22/97 filed by the brother of the Appellant, wherein a uniform rate of Rs. 8,500 per Are was granted. The Reference Court did not hold that the delay in filing the Reference Petitions in the case of the father and the brother of the Appellant was a ground to deny them relief. The land belonging to the Appellant is similarly situated in the same Survey No. 166.
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Pappu & Others Vs. Vinod Kumar Lamba & Another | to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage." Further, in paragraph No.110, the Court observed thus:110. The summary of our findings to the various issues as raised in these petitions are as follows:(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act.(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time,(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof where for would be on them.(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.(viii) xxx(ix) xxx(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." (emphasis supplied) 15. In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL- 5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law. | 1[ds]12. In the present case, the Tribunal has accepted the claim of the appellants. It has, however, absolved the respondent No.2 Insurance Company from any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was driving the offending vehicle at the relevant time.13. Be that as it may, no grievance about the quantum of compensation awarded by the Tribunal has been made by the appellantsclaimants (either before the High Court or before us in this appeal). Hence, that issue does not warrant any scrutiny. Similarly, the owner of the vehicle (respondent No.1) has not challenged the findings of the Tribunal as affirmed by the High Court in favour of the insurer (respondent No.2), including on the factum that the vehicle was driven by a person who did not have a valid driving licence at the relevant time.In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law. | 1 | 4,125 | 281 | ### 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:
to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it has not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage." Further, in paragraph No.110, the Court observed thus:110. The summary of our findings to the various issues as raised in these petitions are as follows:(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act.(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time,(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof where for would be on them.(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.(viii) xxx(ix) xxx(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." (emphasis supplied) 15. In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL- 5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.
### Response:
1
### Explanation:
12. In the present case, the Tribunal has accepted the claim of the appellants. It has, however, absolved the respondent No.2 Insurance Company from any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was driving the offending vehicle at the relevant time.13. Be that as it may, no grievance about the quantum of compensation awarded by the Tribunal has been made by the appellantsclaimants (either before the High Court or before us in this appeal). Hence, that issue does not warrant any scrutiny. Similarly, the owner of the vehicle (respondent No.1) has not challenged the findings of the Tribunal as affirmed by the High Court in favour of the insurer (respondent No.2), including on the factum that the vehicle was driven by a person who did not have a valid driving licence at the relevant time.In the present case, the owner of the vehicle (respondent No.1) had produced the insurance certificate indicating that vehicle No. DIL5955 was comprehensively insured by the respondent No.2 (Insurance Company) for unlimited liability. Applying the dictum in the case of National Insurance Company Ltd. (supra), to subserve the ends of justice, the insurer (respondent No.2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.1) in accordance with law.
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Vithal Somnath Kore Vs. State Of Maharashtra & Others | deceased was also running towards them and naturally the distance would have been shortened so that the witnesses could have contacted the deceased in no time. 5. We fully agree with the High Court that there was no good reason to distrust the evidence of P. Ws. 2 and 6. We have perused their evidence and we think they have deposed in a straightforward manner and their evidence contains a ring of truth. Thus the evidence of these witnesses is sufficient to convict the appellants for the offence of murder. But the evidence of eyewitnesses was further corroborated by the oral dying declarations said to have been made by the deceased to P. Ws. 2 and 6 and also to his brother. P.W. 5 which finds place in F.I.R. also. 6. Another very important document is the dying declaration Ex. 29 recorded by Dr. Doshi which does not appear to have been considered by the learned Sessions Judge at all. Dr. Doshi had appears as a witness and had testified on oath that the deceased was fully conscious and had made the statement before him. This dying declaration does not suffer from any infirmity at all and that is why the learned Sessions Judge has not dealt with it but has excluded it from consideration. This was undoubtedly a serious error of law which was committed by the learned Sessions Judge. The we have dying declaration, Ex. 43, which in our opinion may be excluded from consideration because there is an endorsement of the Doctor that the patient was not answering the questions. Although it is not clear as to when this endorsement was made but having regard to the circumstances of this case we feel it safe to exclude this dying declaration from consideration. Even apart from this there appears to be sufficient evidence against the appellants to sustain the charge of murder. The last dying declaration is Ex. 40 which was recorded by an Honorary Magistrate, P.W. 13 at General Hospital at about 2.10 p.m. The learned Sessions Judge seems to have discarded this dying declaration on three grounds. In the first place the Sessions Judge thought that it was not coherent. Secondly, he was of the view that the deceased tried to improve upon the case of the prosecution by falsely implicating his daughter-in-law Mukta, who was mentioned in his dying declaration. Thirdly, the learned Judge assumed that the deceased was unconscious because he died about two hours later. On a perusal of the dying declaration along with evidence of P.W. 13, who being an honorary Magistrate, was a very independent and respectable witness, we find that the reason given by the Sessions Judge cannot be sustained. In the first place reading dying declaration as a whole, we do not find that this is incoherent. There are a few lapses and a few questions have been missed but by and large the deceased appears to give a complete narrative of the manner in which he was burnt. He has named the two accused in his dying declaration and also mentioned the enmity resulting from the partition suit. One important statement in this dying declaration which has been missed by the Sessions Judge was that the deceased himself stated that he was feeling much better and was fully conscious. It is true that the deceased had mentioned the name of his daughter-in-law Mukta but he does not either assign any role to her nor does he try to involve his daughter-in-law in his assault. It may be possible that Mukta may have come to the spot on hearing alarm and that is why the deceased mentioned her name here. It was suggested that the deceased was suffering from intermittent fits of unconsciousness. There is, however, sufficient evidence to show that the deceased was fully conscious when he made the dying declaration before the Honorary Magistrate. It is well settled that a dying declaration if believed by the Court, is sufficient to sustain a conviction. In the case of Lallubhai Devchand Shah v. The State of Gujarat, AIR 1972 SC 1776 it was held that if the truthfulness of a dying declaration is accepted, it can always from the basis of conviction of the accused. In the instant case we find that even though there was some enmity between the father and the son, yet if A-1 was not the real assailant it is most unlikely that his father would in his dying moment try to falsely implicate his own son. This circumstance, therefore, appears to be a sufficient guarantee of the truth of the dying declaration made by the deceased. 7. Having, therefore, considered the evidence of the eye-witnesses and the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the High Court. 8. We would like to mentioned here that in the first instance A-2 had filed the appeal before the Supreme Court but later we directed learned counsel appearing amicus curiae to move A-1 also to file an appeal to this Court if he so desires. And, therefore, A-1 also filed an appeal which has been registered as a separate appeal. Mr. Ganpule, counsel for the appellants states that Superintendent of Jail had written to him that he was entitled to Rs. 250/- for drafting the petition of appeal from Jail. This is indeed a most extraordinary conduct on the part of Superintendent of Jail. We do not understand under what law he can make such a demand. We, however, do not wish to say anything more on this aspect as the learned counsel appearing for the State has assured us that he will take up this matter with the Government. | 0[ds]5. We fully agree with the High Court that there was no good reason to distrust the evidence of P. Ws. 2 and 6. We have perused their evidence and we think they have deposed in a straightforward manner and their evidence contains a ring of truth. Thus the evidence of these witnesses is sufficient to convict the appellants for the offence of murder. But the evidence of eyewitnesses was further corroborated by the oral dying declarations said to have been made by the deceased to P. Ws. 2 and 6 and also to his brother. P.W. 5 which finds place in F.I.R. also7. Having, therefore, considered the evidence of theeyewitnessesand the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the High Court7. Having, therefore, considered the evidence of theeyewitnessesand the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the HighCourt.8. We would like to mentioned here that in the first instance2 had filed the appeal before the Supreme Court but later we directed learned counsel appearing amicus curiae to move1 also to file an appeal to this Court if he so desires. And, therefore,1 also filed an appeal which has been registered as a separate appeal. Mr. Ganpule, counsel for the appellants states that Superintendent of Jail had written to him that he was entitled to Rs. 250/for drafting the petition of appeal from Jail. This is indeed a most extraordinary conduct on the part of Superintendent of Jail. We do not understand under what law he can make such a demand. We, however, do not wish to say anything more on this aspect as the learned counsel appearing for the State has assured us that he will take up this matter with the Government. | 0 | 2,194 | 433 | ### 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:
deceased was also running towards them and naturally the distance would have been shortened so that the witnesses could have contacted the deceased in no time. 5. We fully agree with the High Court that there was no good reason to distrust the evidence of P. Ws. 2 and 6. We have perused their evidence and we think they have deposed in a straightforward manner and their evidence contains a ring of truth. Thus the evidence of these witnesses is sufficient to convict the appellants for the offence of murder. But the evidence of eyewitnesses was further corroborated by the oral dying declarations said to have been made by the deceased to P. Ws. 2 and 6 and also to his brother. P.W. 5 which finds place in F.I.R. also. 6. Another very important document is the dying declaration Ex. 29 recorded by Dr. Doshi which does not appear to have been considered by the learned Sessions Judge at all. Dr. Doshi had appears as a witness and had testified on oath that the deceased was fully conscious and had made the statement before him. This dying declaration does not suffer from any infirmity at all and that is why the learned Sessions Judge has not dealt with it but has excluded it from consideration. This was undoubtedly a serious error of law which was committed by the learned Sessions Judge. The we have dying declaration, Ex. 43, which in our opinion may be excluded from consideration because there is an endorsement of the Doctor that the patient was not answering the questions. Although it is not clear as to when this endorsement was made but having regard to the circumstances of this case we feel it safe to exclude this dying declaration from consideration. Even apart from this there appears to be sufficient evidence against the appellants to sustain the charge of murder. The last dying declaration is Ex. 40 which was recorded by an Honorary Magistrate, P.W. 13 at General Hospital at about 2.10 p.m. The learned Sessions Judge seems to have discarded this dying declaration on three grounds. In the first place the Sessions Judge thought that it was not coherent. Secondly, he was of the view that the deceased tried to improve upon the case of the prosecution by falsely implicating his daughter-in-law Mukta, who was mentioned in his dying declaration. Thirdly, the learned Judge assumed that the deceased was unconscious because he died about two hours later. On a perusal of the dying declaration along with evidence of P.W. 13, who being an honorary Magistrate, was a very independent and respectable witness, we find that the reason given by the Sessions Judge cannot be sustained. In the first place reading dying declaration as a whole, we do not find that this is incoherent. There are a few lapses and a few questions have been missed but by and large the deceased appears to give a complete narrative of the manner in which he was burnt. He has named the two accused in his dying declaration and also mentioned the enmity resulting from the partition suit. One important statement in this dying declaration which has been missed by the Sessions Judge was that the deceased himself stated that he was feeling much better and was fully conscious. It is true that the deceased had mentioned the name of his daughter-in-law Mukta but he does not either assign any role to her nor does he try to involve his daughter-in-law in his assault. It may be possible that Mukta may have come to the spot on hearing alarm and that is why the deceased mentioned her name here. It was suggested that the deceased was suffering from intermittent fits of unconsciousness. There is, however, sufficient evidence to show that the deceased was fully conscious when he made the dying declaration before the Honorary Magistrate. It is well settled that a dying declaration if believed by the Court, is sufficient to sustain a conviction. In the case of Lallubhai Devchand Shah v. The State of Gujarat, AIR 1972 SC 1776 it was held that if the truthfulness of a dying declaration is accepted, it can always from the basis of conviction of the accused. In the instant case we find that even though there was some enmity between the father and the son, yet if A-1 was not the real assailant it is most unlikely that his father would in his dying moment try to falsely implicate his own son. This circumstance, therefore, appears to be a sufficient guarantee of the truth of the dying declaration made by the deceased. 7. Having, therefore, considered the evidence of the eye-witnesses and the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the High Court. 8. We would like to mentioned here that in the first instance A-2 had filed the appeal before the Supreme Court but later we directed learned counsel appearing amicus curiae to move A-1 also to file an appeal to this Court if he so desires. And, therefore, A-1 also filed an appeal which has been registered as a separate appeal. Mr. Ganpule, counsel for the appellants states that Superintendent of Jail had written to him that he was entitled to Rs. 250/- for drafting the petition of appeal from Jail. This is indeed a most extraordinary conduct on the part of Superintendent of Jail. We do not understand under what law he can make such a demand. We, however, do not wish to say anything more on this aspect as the learned counsel appearing for the State has assured us that he will take up this matter with the Government.
### Response:
0
### Explanation:
5. We fully agree with the High Court that there was no good reason to distrust the evidence of P. Ws. 2 and 6. We have perused their evidence and we think they have deposed in a straightforward manner and their evidence contains a ring of truth. Thus the evidence of these witnesses is sufficient to convict the appellants for the offence of murder. But the evidence of eyewitnesses was further corroborated by the oral dying declarations said to have been made by the deceased to P. Ws. 2 and 6 and also to his brother. P.W. 5 which finds place in F.I.R. also7. Having, therefore, considered the evidence of theeyewitnessesand the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the High Court7. Having, therefore, considered the evidence of theeyewitnessesand the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the HighCourt.8. We would like to mentioned here that in the first instance2 had filed the appeal before the Supreme Court but later we directed learned counsel appearing amicus curiae to move1 also to file an appeal to this Court if he so desires. And, therefore,1 also filed an appeal which has been registered as a separate appeal. Mr. Ganpule, counsel for the appellants states that Superintendent of Jail had written to him that he was entitled to Rs. 250/for drafting the petition of appeal from Jail. This is indeed a most extraordinary conduct on the part of Superintendent of Jail. We do not understand under what law he can make such a demand. We, however, do not wish to say anything more on this aspect as the learned counsel appearing for the State has assured us that he will take up this matter with the Government.
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State of U.P Vs. Chunni Lal & Ors | dissatisfied with the impugned judgment and order dated 16.07.2014 passed by the High Court of Judicature at Allahabad (Lucknow Bench) in Writ Petition No.1181(S/B) of 1996, the State of U.P. has preferred the present appeal. 2. The selection process for 35 posts of Deputy Collector was initiated by the U.P. Public Service Commission. A Combined State Service Examination was held in the year 1985. In the year 1987, the Public Service Commission sent the requisition for appointment of selected candidates on the post of Deputy Collector. Two candidates namely, Shri Ram Subhag Singh (General Category candidate) and Shri Ramesh Kumar Yadav (OBC category candidate) did not join their post. Therefore, two posts of Deputy Collectors remained vacant. The Public Service Commission sent the names of two other candidates namely Shri Digvijay Singh and Chunni Lal (original writ petitioners) for the appointment on the post of Deputy Collector. On the basis of the aforesaid recommendation by the Commission, the State Government issued letter on 24.04.1989 to the Director General, Medical and Health Services, Lucknow for medical examination of the aforesaid two persons. In the meanwhile, private respondent herein Ajay Shankar Pandey approached the High Court by filing Writ Petition No.22966 of 1988. The Division Bench of the High Court vide judgment and order dated 09.05.1989 allowed the said writ petition and directed the Public Service Commission to recommend the name of the private respondent herein - Ajay Shankar Pandey. 2.1 In compliance of the judgment and order dated 09.05.1989, the Commission vide letter dated 24.06.1989 withdrew the recommendation made in favour of the original writ petitioner – Chunni Lal. That against the judgment and order dated 09.05.1989, the State approached this Court by filing special leave to appeal, which came to be disposed of by this Court. 2.2 Thereafter the respondent No.1 herein – Chunni Lal filed a writ petition before the High Court against continuance of Ajay Shankar Pandey. He also preferred a representation. The Division Bench of the High Court vide order dated 08.11.1996 directed the State/Public Service Commission to dispose of the representation. The said representation was considered by the State and the State rejected the same vide order dated 13.12.1996. The original writ petitioner – Chunni Lal amended the writ petition and challenged the order dated 13.12.1996 rejecting his representation. By the impugned judgment and order, the High Court has quashed and set aside the order dated 13.12.1996 rejecting the representation of the respondent No.1 herein and has directed the State to re-consider the matter of the respondent No.1 herein – original writ petitioner for appointment to the post of Deputy Collector considering the subsequent recommendation made by the Public Service Commission in favour of the original writ petitioner. However, the High Court clarified that the appointment of the respondent No.2 herein – Ajay Shankar Pandey shall not be disturbed in any manner. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the State has preferred the present appeal. 3. That by order dated 30.10.2014, the impugned judgment and order passed by the High Court has been stayed, which has been continued till date. Meaning thereby, the respondent No.1 herein – original writ petitioner is not appointed to the post of Deputy Collector pursuant to the impugned judgment and order passed by the High Court. 4. Though served nobody has appeared on behalf of respondent No.1 – original writ petitioner. 5. Today when the present appeal is taken up for further hearing, learned counsel appearing on behalf of the State as well as learned counsel appearing on behalf of respondent No.2 – Ajay Shankar Pandey have stated at the Bar that during the pendency of the present proceedings, respondent No.1 herein – original writ petitioner has retired in the post of Deputy Transport Commissioner on 31.08.2019 on attaining the age of superannuation. It is therefore submitted that now the impugned judgment and order passed by the High Court is not capable of being implemented as there is no purpose of now appointing respondent No.1 to the post of Deputy Collector. Even otherwise on merits also, we are of the opinion that the impugned judgment and order passed by the High Court is unsustainable. The High Court ought not to have or could not have passed an order directing the State to appoint two persons to the single post of Deputy Collector, more particularly, when on the post of Deputy Collector, respondent No.2 – Ajay Shankar Pandey was appointed / or was required to be appointed pursuant to the order passed by the High court in Writ Petition No. 22966 of 1988 dated 09.05.1989. 6. At this stage, it is required to be noted that while rejecting the representation, it was specifically observed that the original writ petitioner cannot be appointed as on the post of Deputy Collector on which he is claiming the appointment as Ajay Shankar Pandey has been appointed pursuant to the order passed by the High Court and that there is no vacant post and even no supernumerary post can be created. Despite the above, the High Court has directed the State to appoint the respondent No.1 – original writ petitioner solely on the basis of some subsequent recommendation by the Public Service Commission. Even the observation made by the High Court that the original writ petitioner be appointed without disturbing the appointment of Ajay Shankar Pandey cannot be sustained. This is because two persons cannot be directed to be appointed to a single post. Therefore, the impugned judgment and order passed by the High Court deserves to be quashed and set aside. 7. We have noted the submission on behalf of State and the respondent No.2 – Ajay Shankar Pandey that during the pendency of the present proceedings, respondent No.1 has retired in the post of Deputy Transport Commissioner on 31.08.2019 on attaining the age of superannuation and therefore also the impugned judgment and order passed by the High Court is not capable of being implemented | 1[ds]Even otherwise on merits also, we are of the opinion that the impugned judgment and order passed by the High Court is unsustainable. The High Court ought not to have or could not have passed an order directing the State to appoint two persons to the single post of Deputy Collector, more particularly, when on the post of Deputy Collector, respondent No.2 – Ajay Shankar Pandey was appointed / or was required to be appointed pursuant to the order passed by the High court in Writ Petition No. 22966 of 1988 dated 09.05.1989.6. At this stage, it is required to be noted that while rejecting the representation, it was specifically observed that the original writ petitioner cannot be appointed as on the post of Deputy Collector on which he is claiming the appointment as Ajay Shankar Pandey has been appointed pursuant to the order passed by the High Court and that there is no vacant post and even no supernumerary post can be created. Despite the above, the High Court has directed the State to appoint the respondent No.1 – original writ petitioner solely on the basis of some subsequent recommendation by the Public Service Commission. Even the observation made by the High Court that the original writ petitioner be appointed without disturbing the appointment of Ajay Shankar Pandey cannot be sustained. This is because two persons cannot be directed to be appointed to a single post. Therefore, the impugned judgment and order passed by the High Court deserves to be quashed and set aside.7. We have noted the submission on behalf of State and the respondent No.2 – Ajay Shankar Pandey that during the pendency of the present proceedings, respondent No.1 has retired in the post of Deputy Transport Commissioner on 31.08.2019 on attaining the age of superannuation and therefore also the impugned judgment and order passed by the High Court is not capable of being implemented | 1 | 1,088 | 342 | ### 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:
dissatisfied with the impugned judgment and order dated 16.07.2014 passed by the High Court of Judicature at Allahabad (Lucknow Bench) in Writ Petition No.1181(S/B) of 1996, the State of U.P. has preferred the present appeal. 2. The selection process for 35 posts of Deputy Collector was initiated by the U.P. Public Service Commission. A Combined State Service Examination was held in the year 1985. In the year 1987, the Public Service Commission sent the requisition for appointment of selected candidates on the post of Deputy Collector. Two candidates namely, Shri Ram Subhag Singh (General Category candidate) and Shri Ramesh Kumar Yadav (OBC category candidate) did not join their post. Therefore, two posts of Deputy Collectors remained vacant. The Public Service Commission sent the names of two other candidates namely Shri Digvijay Singh and Chunni Lal (original writ petitioners) for the appointment on the post of Deputy Collector. On the basis of the aforesaid recommendation by the Commission, the State Government issued letter on 24.04.1989 to the Director General, Medical and Health Services, Lucknow for medical examination of the aforesaid two persons. In the meanwhile, private respondent herein Ajay Shankar Pandey approached the High Court by filing Writ Petition No.22966 of 1988. The Division Bench of the High Court vide judgment and order dated 09.05.1989 allowed the said writ petition and directed the Public Service Commission to recommend the name of the private respondent herein - Ajay Shankar Pandey. 2.1 In compliance of the judgment and order dated 09.05.1989, the Commission vide letter dated 24.06.1989 withdrew the recommendation made in favour of the original writ petitioner – Chunni Lal. That against the judgment and order dated 09.05.1989, the State approached this Court by filing special leave to appeal, which came to be disposed of by this Court. 2.2 Thereafter the respondent No.1 herein – Chunni Lal filed a writ petition before the High Court against continuance of Ajay Shankar Pandey. He also preferred a representation. The Division Bench of the High Court vide order dated 08.11.1996 directed the State/Public Service Commission to dispose of the representation. The said representation was considered by the State and the State rejected the same vide order dated 13.12.1996. The original writ petitioner – Chunni Lal amended the writ petition and challenged the order dated 13.12.1996 rejecting his representation. By the impugned judgment and order, the High Court has quashed and set aside the order dated 13.12.1996 rejecting the representation of the respondent No.1 herein and has directed the State to re-consider the matter of the respondent No.1 herein – original writ petitioner for appointment to the post of Deputy Collector considering the subsequent recommendation made by the Public Service Commission in favour of the original writ petitioner. However, the High Court clarified that the appointment of the respondent No.2 herein – Ajay Shankar Pandey shall not be disturbed in any manner. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the State has preferred the present appeal. 3. That by order dated 30.10.2014, the impugned judgment and order passed by the High Court has been stayed, which has been continued till date. Meaning thereby, the respondent No.1 herein – original writ petitioner is not appointed to the post of Deputy Collector pursuant to the impugned judgment and order passed by the High Court. 4. Though served nobody has appeared on behalf of respondent No.1 – original writ petitioner. 5. Today when the present appeal is taken up for further hearing, learned counsel appearing on behalf of the State as well as learned counsel appearing on behalf of respondent No.2 – Ajay Shankar Pandey have stated at the Bar that during the pendency of the present proceedings, respondent No.1 herein – original writ petitioner has retired in the post of Deputy Transport Commissioner on 31.08.2019 on attaining the age of superannuation. It is therefore submitted that now the impugned judgment and order passed by the High Court is not capable of being implemented as there is no purpose of now appointing respondent No.1 to the post of Deputy Collector. Even otherwise on merits also, we are of the opinion that the impugned judgment and order passed by the High Court is unsustainable. The High Court ought not to have or could not have passed an order directing the State to appoint two persons to the single post of Deputy Collector, more particularly, when on the post of Deputy Collector, respondent No.2 – Ajay Shankar Pandey was appointed / or was required to be appointed pursuant to the order passed by the High court in Writ Petition No. 22966 of 1988 dated 09.05.1989. 6. At this stage, it is required to be noted that while rejecting the representation, it was specifically observed that the original writ petitioner cannot be appointed as on the post of Deputy Collector on which he is claiming the appointment as Ajay Shankar Pandey has been appointed pursuant to the order passed by the High Court and that there is no vacant post and even no supernumerary post can be created. Despite the above, the High Court has directed the State to appoint the respondent No.1 – original writ petitioner solely on the basis of some subsequent recommendation by the Public Service Commission. Even the observation made by the High Court that the original writ petitioner be appointed without disturbing the appointment of Ajay Shankar Pandey cannot be sustained. This is because two persons cannot be directed to be appointed to a single post. Therefore, the impugned judgment and order passed by the High Court deserves to be quashed and set aside. 7. We have noted the submission on behalf of State and the respondent No.2 – Ajay Shankar Pandey that during the pendency of the present proceedings, respondent No.1 has retired in the post of Deputy Transport Commissioner on 31.08.2019 on attaining the age of superannuation and therefore also the impugned judgment and order passed by the High Court is not capable of being implemented
### Response:
1
### Explanation:
Even otherwise on merits also, we are of the opinion that the impugned judgment and order passed by the High Court is unsustainable. The High Court ought not to have or could not have passed an order directing the State to appoint two persons to the single post of Deputy Collector, more particularly, when on the post of Deputy Collector, respondent No.2 – Ajay Shankar Pandey was appointed / or was required to be appointed pursuant to the order passed by the High court in Writ Petition No. 22966 of 1988 dated 09.05.1989.6. At this stage, it is required to be noted that while rejecting the representation, it was specifically observed that the original writ petitioner cannot be appointed as on the post of Deputy Collector on which he is claiming the appointment as Ajay Shankar Pandey has been appointed pursuant to the order passed by the High Court and that there is no vacant post and even no supernumerary post can be created. Despite the above, the High Court has directed the State to appoint the respondent No.1 – original writ petitioner solely on the basis of some subsequent recommendation by the Public Service Commission. Even the observation made by the High Court that the original writ petitioner be appointed without disturbing the appointment of Ajay Shankar Pandey cannot be sustained. This is because two persons cannot be directed to be appointed to a single post. Therefore, the impugned judgment and order passed by the High Court deserves to be quashed and set aside.7. We have noted the submission on behalf of State and the respondent No.2 – Ajay Shankar Pandey that during the pendency of the present proceedings, respondent No.1 has retired in the post of Deputy Transport Commissioner on 31.08.2019 on attaining the age of superannuation and therefore also the impugned judgment and order passed by the High Court is not capable of being implemented
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P. Dinakaran Vs. Janak Raj Chopra & Others | Registrar, NCDRC, New Delhi 110 001.It is made clear that the period of four weeks would not be extended on any count and in case of any default the stay of the order of the State Commission would be vacated. " 4. In the order impugned before us which was passed on 10-7-2002 it is recorded by the National Commission that when the matter was taken up counsel appearing for the appellant had stated before it that the appellant had not complied with the undertaking given by him as recorded on 21-5-2002. Accordingly, the National Commission was of the view that it was not a fit case to exercise its jurisdiction under S.21(b) of the Consumer Protection Act, 1986. The revisional application was dismissed with costs which were assessed at Rs 20,000.5. The notice which was issued by this Court was limited to the question of interpretation of S.27 of the Act. The learned counsel appearing on behalf of the appellant submits that S.27 provides that if an order of the District Forum or the State Commission or the National Commission is not complied with by the person against whom the order is passed, before he can be punished, the Consumer Protection Fora must apply their minds to the quantum of such punishment. The section reads thus: "27. Penalties.-- Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section." 6. It is submitted by learned counsel appearing on behalf of the appellant on the basis of the decision of this Court in State of Karnataka v. Vishwabharathi House Building Coop. Society, 2003 (2) SCC 412 : JT 2003 (1) SC 344 that there had been no order passed by any of the several fora at the different levels considering the quantum of sentence imposed on the appellant. It is pointed out that although the appellant had not made any deposit pursuant to the undertaking given to the National Commission, nevertheless, an amount of about "Rs 54,00,000" (Rupees fifty four lakhs) had been deposited with the Delhi High Court. An order dated 12-9-2001 under which bail was granted to the appellant by the Delhi High Court has been referred to in this context. 7. We have considered the decision relied upon by the appellant. In that decision the constitutional validity of the Consumer Protection Act was upheld. The particular paragraph relied upon by the appellant is paragraph 39 which reads thus: "The rights of the parties have adequately been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons. Even when quantifying damages, they are required to make an attempt to serve the ends of justice aiming not only at recompensing the individual but also to bring about a qualitative change in the attitude of the service provider. Assignment of reasons excludes or at any rate minimises the chance of arbitrariness and the higher forums created under the Act can test the correctness thereof." 8. We have scrutinised the order of the District Forum imposing sentence. The District Forum noticed that the appellant had received amounts from several others including the complainants; that the appellant had not paid the amount as directed by the District Forum in each of the cases; that the appellant had appeared before the Forum on different dates and could not submit any reply in answer to the notice under S.27 of the Act except for an application by the appellant in which it was stated that since criminal cases were pending against the appellant the proceedings before the Forum should be stayed. 9. The District Forum has recorded that "taking into consideration the facts mentioned above, we hereby direct that Shri P. Dinakaran, MD of the Company shall be sentenced to imprisonment for six months in each of the cases. Sentence in each case to run consecutively one after other." It cannot be said in these circumstances that the District Forum had not applied its mind or given reasons for imposing the sentence it did. 10. According to the appellant, the District Forum should have taken into consideration the fact that the appellant has deposited an amount of Rs 54,00,000 (Rupees fifty four lakhs). We have scrutinised the order of the Delhi High Court granting bail. That order records submissions on behalf of the counsel for the appellant that the appellant in that case had already deposited a sum of rupees fifty four lakhs. What is recorded is, therefore, a mere submission and not a statement. There are no particulars as to whether the sum has been deposited in the High Court or in any other court. There is also no proof of such deposit having been made. It may also be noted that the undertaking given to the National Commission was subsequent to the order of the Delhi High Court. 11. Finally, no explanation is forthcoming even today as to why the undertaking given on oath before the National Commission was not complied with by the appellant. The National Commission was, therefore, perfectly justified in rejecting the appellants application. | 0[ds]11. Finally, no explanation is forthcoming even today as to why the undertaking given on oath before the National Commission was not complied with by the appellant. The National Commission was, therefore, perfectly justified in rejecting the appellants application.We have scrutinised the order of the District Forum imposing sentence. The District Forum noticed that the appellant had received amounts from several others including the complainants; that the appellant had not paid the amount as directed by the District Forum in each of the cases; that the appellant had appeared before the Forum on different dates and could not submit any reply in answer to the notice under S.27 of the Act except for an application by the appellant in which it was stated that since criminal cases were pending against the appellant the proceedings before the Forum should beis recorded is, therefore, a mere submission and not a statement. There are no particulars as to whether the sum has been deposited in the High Court or in any other court. There is also no proof of such deposit having been made. It may also be noted that the undertaking given to the National Commission was subsequent to the order of the Delhi High Court. | 0 | 1,355 | 222 | ### 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:
Registrar, NCDRC, New Delhi 110 001.It is made clear that the period of four weeks would not be extended on any count and in case of any default the stay of the order of the State Commission would be vacated. " 4. In the order impugned before us which was passed on 10-7-2002 it is recorded by the National Commission that when the matter was taken up counsel appearing for the appellant had stated before it that the appellant had not complied with the undertaking given by him as recorded on 21-5-2002. Accordingly, the National Commission was of the view that it was not a fit case to exercise its jurisdiction under S.21(b) of the Consumer Protection Act, 1986. The revisional application was dismissed with costs which were assessed at Rs 20,000.5. The notice which was issued by this Court was limited to the question of interpretation of S.27 of the Act. The learned counsel appearing on behalf of the appellant submits that S.27 provides that if an order of the District Forum or the State Commission or the National Commission is not complied with by the person against whom the order is passed, before he can be punished, the Consumer Protection Fora must apply their minds to the quantum of such punishment. The section reads thus: "27. Penalties.-- Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section." 6. It is submitted by learned counsel appearing on behalf of the appellant on the basis of the decision of this Court in State of Karnataka v. Vishwabharathi House Building Coop. Society, 2003 (2) SCC 412 : JT 2003 (1) SC 344 that there had been no order passed by any of the several fora at the different levels considering the quantum of sentence imposed on the appellant. It is pointed out that although the appellant had not made any deposit pursuant to the undertaking given to the National Commission, nevertheless, an amount of about "Rs 54,00,000" (Rupees fifty four lakhs) had been deposited with the Delhi High Court. An order dated 12-9-2001 under which bail was granted to the appellant by the Delhi High Court has been referred to in this context. 7. We have considered the decision relied upon by the appellant. In that decision the constitutional validity of the Consumer Protection Act was upheld. The particular paragraph relied upon by the appellant is paragraph 39 which reads thus: "The rights of the parties have adequately been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons. Even when quantifying damages, they are required to make an attempt to serve the ends of justice aiming not only at recompensing the individual but also to bring about a qualitative change in the attitude of the service provider. Assignment of reasons excludes or at any rate minimises the chance of arbitrariness and the higher forums created under the Act can test the correctness thereof." 8. We have scrutinised the order of the District Forum imposing sentence. The District Forum noticed that the appellant had received amounts from several others including the complainants; that the appellant had not paid the amount as directed by the District Forum in each of the cases; that the appellant had appeared before the Forum on different dates and could not submit any reply in answer to the notice under S.27 of the Act except for an application by the appellant in which it was stated that since criminal cases were pending against the appellant the proceedings before the Forum should be stayed. 9. The District Forum has recorded that "taking into consideration the facts mentioned above, we hereby direct that Shri P. Dinakaran, MD of the Company shall be sentenced to imprisonment for six months in each of the cases. Sentence in each case to run consecutively one after other." It cannot be said in these circumstances that the District Forum had not applied its mind or given reasons for imposing the sentence it did. 10. According to the appellant, the District Forum should have taken into consideration the fact that the appellant has deposited an amount of Rs 54,00,000 (Rupees fifty four lakhs). We have scrutinised the order of the Delhi High Court granting bail. That order records submissions on behalf of the counsel for the appellant that the appellant in that case had already deposited a sum of rupees fifty four lakhs. What is recorded is, therefore, a mere submission and not a statement. There are no particulars as to whether the sum has been deposited in the High Court or in any other court. There is also no proof of such deposit having been made. It may also be noted that the undertaking given to the National Commission was subsequent to the order of the Delhi High Court. 11. Finally, no explanation is forthcoming even today as to why the undertaking given on oath before the National Commission was not complied with by the appellant. The National Commission was, therefore, perfectly justified in rejecting the appellants application.
### Response:
0
### Explanation:
11. Finally, no explanation is forthcoming even today as to why the undertaking given on oath before the National Commission was not complied with by the appellant. The National Commission was, therefore, perfectly justified in rejecting the appellants application.We have scrutinised the order of the District Forum imposing sentence. The District Forum noticed that the appellant had received amounts from several others including the complainants; that the appellant had not paid the amount as directed by the District Forum in each of the cases; that the appellant had appeared before the Forum on different dates and could not submit any reply in answer to the notice under S.27 of the Act except for an application by the appellant in which it was stated that since criminal cases were pending against the appellant the proceedings before the Forum should beis recorded is, therefore, a mere submission and not a statement. There are no particulars as to whether the sum has been deposited in the High Court or in any other court. There is also no proof of such deposit having been made. It may also be noted that the undertaking given to the National Commission was subsequent to the order of the Delhi High Court.
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Glodyne Technoserve Limited Vs. State Of M.P | General submitted that the order of the High Court impugned in the present appeal did not suffer from any infirmity which required any interference by this Court. 29. The submissions made by the learned Attorney General were reiterated by Mr. Paras Kuhad, appearing for the Respondent No.4, HCL Construction Ltd, which was impleaded as a Respondent by this Court on 3rd August, 2010. Mr. Kuhad submitted that having regard to the fact that a Corrigendum had been issued by which the provisions of paragraphs 3.1 and 7.1 had been completely substituted, it was no longer open to the Appellant to place reliance on the same since the said provisions no longer existed. Mr. Kuhad contended that the submissions made on behalf of the Appellant Company with regard to the conditions in the Bidders Response Form and the Bidders Check List, as it stood prior to the Corrigendum having been issued, was devoid of substance and the same had been made only to be rejected. 30. Mr. Kuhad pointed out that once the work had been entrusted to the Respondent No.4, it had taken various steps in establishing the District Mechanism for Public Distribution System in Madhya Pradesh. It was urged that in that regard steps had been taken for Data Digitization Application Development, Preparation of Pre-Enrolment Data, Training and Certification of Operators, Establishment of Enrolment Camps, Biometric Enrolment of Beneficiaries, Data Transfer to UID, Generation of Aadhaar/UID Number and Mapping of EID number to UID number. Mr. Kuhad urged that the steps which were yet to be completed related to the loading of the data to the server and for preparation of the Ration Cards and for issuance of the same and also Food Coupons printing and distribution and retrieval thereof. It was submitted that at this advanced stage, it would be highly inequitable if the public distribution supply project in Madhya Pradesh was interfered with. 31. Replying to the submissions made on behalf of the Respondents, Mr. Shyam Divan, learned Senior Advocate, urged that the Corrigendum which was issued by the Respondents was not a replacement, as had been contended both by the learned Attorney General as well as Mr. Kuhad, but an addition to what was already in existence. Mr. Shyam Divan reiterated the submissions made by Mr. Salve that the clause relating to filing of certificate of registration even at the stage of signing of the agreement was valid and capable of being acted upon. Mr. Divan contended that the only change which was effected by the Corrigendum in regard to the Bidders response clearly indicated that the Corrigendum related only to the introduction of Lead Partners in case of Consortium and that in case of a Consortium, the partner developing the software application should have CMM Level 3 Certification. It was submitted that in any event, in the absence of clarity, the benefit should go to the Appellant and its bid ought not to have been rejected at the Technical bid stage. 32. Having considered the submissions made on behalf of the respective parties, we are inclined to accept the submissions made by the Attorney General that the introduction of the Corrigendum completely changed the provision in the Bidders Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification. In any event, the appellants contention based on clause 9 of Section 7.1.1 of the RFP as it stood prior to corrigendum is misconceived. The said clause 9 specifically provided: ".....A copy of the Quality certificate or documentation of the Quality policy needs to be provided along with the bid document. In case the certificate is due for renewal, the bidder should ensure that the renewed certificate is made available at the time of signing of contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 bidder." The above provision obliges a tenderer to produce along with the bid document a copy of the Quality certificate which is valid and active on the date of submission of the bid and it does not enable a bidder to withhold the copy of such Quality Certificate. Where the Quality certificate will be expiring shortly and is due for renewal, the bidder is also obliged to produce the renewed certificate at the time of signing of the contract. The appellant claimed to have a valid and active ISO 9001:2000 certificate at the time of submission of the bid, but did not produce a copy of the said certificate along with the bid document. 33. The submissions made on behalf of the Appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the Memorandum of Understanding. The Appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the Bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the Technical Bid of the Appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the Appellant in this regard, as the principles enunciated therein are well-established.34. Even the question as to whether Shri Naveen Prakash of the consultant agency had obtained information that the Appellant had a valid and active ISO 9001:2000 certification and had passed on such information to Shri Kesari, does not make any difference, since the same was never asked for or placed before the Tender Advisory Committee constituted for the purpose of scrutinizing the Bids despite the presence of Shri Naveen Prakash at the meeting of the Advisory Committee at 2.15 p.m. on the same day. 35. | 0[ds]32. Having considered the submissions made on behalf of the respective parties, we are inclined to accept the submissions made by the Attorney General that the introduction of the Corrigendum completely changed the provision in the Bidders Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification. In any event, the appellants contention based on clause 9 of Section 7.1.1 of the RFP as it stood prior to corrigendum is misconceived.The submissions made on behalf of the Appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the Memorandum of Understanding. The Appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the Bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the Technical Bid of the Appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the Appellant in this regard, as the principles enunciated therein are well-established.34. Even the question as to whether Shri Naveen Prakash of the consultant agency had obtained information that the Appellant had a valid and active ISO 9001:2000 certification and had passed on such information to Shri Kesari, does not make any difference, since the same was never asked for or placed before the Tender Advisory Committee constituted for the purpose of scrutinizing the Bids despite the presence of Shri Naveen Prakash at the meeting of the Advisory Committee at 2.15 p.m. on the same day. | 0 | 5,265 | 338 | ### 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:
General submitted that the order of the High Court impugned in the present appeal did not suffer from any infirmity which required any interference by this Court. 29. The submissions made by the learned Attorney General were reiterated by Mr. Paras Kuhad, appearing for the Respondent No.4, HCL Construction Ltd, which was impleaded as a Respondent by this Court on 3rd August, 2010. Mr. Kuhad submitted that having regard to the fact that a Corrigendum had been issued by which the provisions of paragraphs 3.1 and 7.1 had been completely substituted, it was no longer open to the Appellant to place reliance on the same since the said provisions no longer existed. Mr. Kuhad contended that the submissions made on behalf of the Appellant Company with regard to the conditions in the Bidders Response Form and the Bidders Check List, as it stood prior to the Corrigendum having been issued, was devoid of substance and the same had been made only to be rejected. 30. Mr. Kuhad pointed out that once the work had been entrusted to the Respondent No.4, it had taken various steps in establishing the District Mechanism for Public Distribution System in Madhya Pradesh. It was urged that in that regard steps had been taken for Data Digitization Application Development, Preparation of Pre-Enrolment Data, Training and Certification of Operators, Establishment of Enrolment Camps, Biometric Enrolment of Beneficiaries, Data Transfer to UID, Generation of Aadhaar/UID Number and Mapping of EID number to UID number. Mr. Kuhad urged that the steps which were yet to be completed related to the loading of the data to the server and for preparation of the Ration Cards and for issuance of the same and also Food Coupons printing and distribution and retrieval thereof. It was submitted that at this advanced stage, it would be highly inequitable if the public distribution supply project in Madhya Pradesh was interfered with. 31. Replying to the submissions made on behalf of the Respondents, Mr. Shyam Divan, learned Senior Advocate, urged that the Corrigendum which was issued by the Respondents was not a replacement, as had been contended both by the learned Attorney General as well as Mr. Kuhad, but an addition to what was already in existence. Mr. Shyam Divan reiterated the submissions made by Mr. Salve that the clause relating to filing of certificate of registration even at the stage of signing of the agreement was valid and capable of being acted upon. Mr. Divan contended that the only change which was effected by the Corrigendum in regard to the Bidders response clearly indicated that the Corrigendum related only to the introduction of Lead Partners in case of Consortium and that in case of a Consortium, the partner developing the software application should have CMM Level 3 Certification. It was submitted that in any event, in the absence of clarity, the benefit should go to the Appellant and its bid ought not to have been rejected at the Technical bid stage. 32. Having considered the submissions made on behalf of the respective parties, we are inclined to accept the submissions made by the Attorney General that the introduction of the Corrigendum completely changed the provision in the Bidders Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification. In any event, the appellants contention based on clause 9 of Section 7.1.1 of the RFP as it stood prior to corrigendum is misconceived. The said clause 9 specifically provided: ".....A copy of the Quality certificate or documentation of the Quality policy needs to be provided along with the bid document. In case the certificate is due for renewal, the bidder should ensure that the renewed certificate is made available at the time of signing of contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 bidder." The above provision obliges a tenderer to produce along with the bid document a copy of the Quality certificate which is valid and active on the date of submission of the bid and it does not enable a bidder to withhold the copy of such Quality Certificate. Where the Quality certificate will be expiring shortly and is due for renewal, the bidder is also obliged to produce the renewed certificate at the time of signing of the contract. The appellant claimed to have a valid and active ISO 9001:2000 certificate at the time of submission of the bid, but did not produce a copy of the said certificate along with the bid document. 33. The submissions made on behalf of the Appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the Memorandum of Understanding. The Appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the Bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the Technical Bid of the Appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the Appellant in this regard, as the principles enunciated therein are well-established.34. Even the question as to whether Shri Naveen Prakash of the consultant agency had obtained information that the Appellant had a valid and active ISO 9001:2000 certification and had passed on such information to Shri Kesari, does not make any difference, since the same was never asked for or placed before the Tender Advisory Committee constituted for the purpose of scrutinizing the Bids despite the presence of Shri Naveen Prakash at the meeting of the Advisory Committee at 2.15 p.m. on the same day. 35.
### Response:
0
### Explanation:
32. Having considered the submissions made on behalf of the respective parties, we are inclined to accept the submissions made by the Attorney General that the introduction of the Corrigendum completely changed the provision in the Bidders Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification. In any event, the appellants contention based on clause 9 of Section 7.1.1 of the RFP as it stood prior to corrigendum is misconceived.The submissions made on behalf of the Appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the Memorandum of Understanding. The Appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the Bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the Technical Bid of the Appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the Appellant in this regard, as the principles enunciated therein are well-established.34. Even the question as to whether Shri Naveen Prakash of the consultant agency had obtained information that the Appellant had a valid and active ISO 9001:2000 certification and had passed on such information to Shri Kesari, does not make any difference, since the same was never asked for or placed before the Tender Advisory Committee constituted for the purpose of scrutinizing the Bids despite the presence of Shri Naveen Prakash at the meeting of the Advisory Committee at 2.15 p.m. on the same day.
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State Of Orissa Vs. Babajli Charan Mohanty | there would have been considerable time gap between the point of hearing the cries of her husband and the point of time when she could gain access to the scene of occurrence. By that time, in all probability, the attack would have been over. The assailants would not have leisurely carried out the attack, especially in the midst of commotion going on in the house. Secondly, even after hearing the shouts of PW-1 and sensing her efforts to draw the attention of passers-by the accused would not have remained there still assaulting the victim, taking the risk of being sighted by PW-1 and other. 14. The attack for the second time has been narrated by her in the following words:- "I dragged him to the verandah of the Bari side house. From there I proceeded to our Bari side towards the house of Krushna Das. I called him. When Krushna Das was coming towards our house, accused persons Babaji and Mayadhar threatened him with assault in case he came to the rescue of my deceased husband. So I came to the place where my husband was lying. Again I saw accused Babaji (my father in law) assaulting my husband with a Gada and accused Mayadhar assaulting him with a sword (Khanda). I caught hold of the feet of my father-in-law accused Babaji and requested him not to assault. Thereafter accused Mayadhar dragged me and put me inside the kitchen. Again I came to the place where my husband was lying. Again accused Babaji pushed me inside the bed room. When he was about to close the door from outside I came out of the room and again shouted for help. At that time accused persons Babaji and Mayadhar threatened to kill me if I did not keep quiet. On hearing my shouts, the Gramsrakhi Kangali Jena and Sitanath Dalei arrived at the house." 15. This apart of the story also seems to be quite artificial and highly improbable. It is difficult to believe that the two accused having perpetrated a ghastly crime and having got the impression that the victim was dead could still remain there to launch another attack in spite of the shouts and cries of PW-1 even after knowing fully well that PW-1 went out to call the neighbours. Is it reasonably possible to believe that the accused would have allowed her to go out to inform the neighbours and in any case, will they wait till PW-1 returns and then launch another attack on the person who was almost dead by that time? It will be equally difficult to believe that the accused remained in the house till Krushnadas (PW-5) approached their house and threatened him with dire consequences if he came to the rescue of the deceased. Of course, PW-5 who was treated hostile witness did not support the version of PW-1. Be that as it may, what is relevant to notice is that soon after the alleged confrontation with PW-5, PW-3 and another by name Kangali Jena (Gramrakshi) came there on hearing the shouts of PW-1. It is in the evidence of PW-3 that he did not see either of the accused in the house. Either the accused were not at al there in the house or they would have left just before PW-3 and another came to the house. But, it is not the version of PW-1 that they left by that time. If the accused wanted to leave the house after the murderous attack, having regard to the ordinary course of human conduct, they should have in all probability left soon after the attack without being seen by anybody. Thus, any amount of doubt crops up whether P.W.1 had seen the actual attack or she acted on suspicion, maybe strong suspicion, about the involvement of the accused-respondents. 16. There is yet another circumstance which costs some doubt on the prosecution case. PW-1 stated that after the first attack she fed the victim with some water and then dragged him to the varandah on the back side of the house. Whether the assailants and other family members who were trying to forcefully silence P.W. 1 would have allowed her to drag and shift the body of the deceased is one aspect. If, in fact, he had been dragged, blood stains should have been found in the passage and verandah but nothing was found by PW-13, the I.O. No blood stains were found even on PW-1s dress. 17. The above facts and circumstances would give rise to a reasonable doubt whether the incident had taken place in the manner narrated by PW-1. Added to this, the conduct of PW-1 in implicating all the family members imputing them certain overt acts which were found to be unbelievable by the trial Court would cast a serious doubt on the reliability of PW-1s evidence. She went to the police station leaving the victim who was unconscious but still alive and reported against all the family members en bloc excepting the mother of the deceased who is said to be mentally unsound. Her vindictiveness and tendency to implicate innocent persons as well is apparent from this conduct. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony of PW-1, the High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. It is true that the conduct of accused persons after the incident had taken place is very unnatural and creates strong suspicion against them; but, that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of son/brother is made out. We are, therefore, not inclined to interfere with the verdict of acquittal rendered by the High Court though the reasoning of the High Court is unsatisfactory in some respects. 18. | 0[ds]17. The above facts and circumstances would give rise to a reasonable doubt whether the incident had taken place in the manner narrated byAdded to this, the conduct ofin implicating all the family members imputing them certain overt acts which were found to be unbelievable by the trial Court would cast a serious doubt on the reliability ofevidence. She went to the police station leaving the victim who was unconscious but still alive and reported against all the family members en bloc excepting the mother of the deceased who is said to be mentally unsound. Her vindictiveness and tendency to implicate innocent persons as well is apparent from this conduct. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony ofthe High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. It is true that the conduct of accused persons after the incident had taken place is very unnatural and creates strong suspicion against them; but, that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of son/brother is made out. We are, therefore, not inclined to interfere with the verdict of acquittal rendered by the High Court though the reasoning of the High Court is unsatisfactory in someis difficult to believe the version ofPW1 that shehad seen the two accused attacking her husband. Firstly, in view of what is noticed above, there would have been considerable time gap between the point of hearing the cries of her husband and the point of time when she could gain access to the scene of occurrence. By that time, in all probability, the attack would have been over. The assailants would not have leisurely carried out the attack, especially in the midst of commotion going on in the house. Secondly, even after hearing the shouts ofand sensing her efforts to draw the attention ofthe accused would not have remained there still assaulting the victim, taking the risk of being sighted by5. This apart of the story also seems to be quite artificial and highly improbable. It is difficult to believe that the two accused having perpetrated a ghastly crime and having got the impression that the victim was dead could still remain there to launch another attack in spite of the shouts and cries ofeven after knowing fully well thatwent out to call the neighbours. Is it reasonably possible to believe that the accused would have allowed her to go out to inform the neighbours and in any case, will they wait tillreturns and then launch another attack on the person who was almost dead by that time? It will be equally difficult to believe that the accused remained in the house till Krushnadasapproached their house and threatened him with dire consequences if he came to the rescue of the deceased. Of course,who was treated hostile witness did not support the version ofBe that as it may, what is relevant to notice is that soon after the alleged confrontation with3 and another by name Kangali Jena (Gramrakshi) came there on hearing the shouts ofPW1. It isin the evidence ofthat he did not see either of the accused in the house. Either the accused were not at al there in the house or they would have left just beforeand another came to the house. But, it is not the version ofThere is yet another circumstance which costs some doubt on the prosecution case.stated that after the first attack she fed the victim with some water and then dragged him to the varandah on the back side of the house. Whether the assailants and other family members who were trying to forcefully silence P.W. 1 would have allowed her to drag and shift the body of the deceased is one aspect. If, in fact, he had been dragged, blood stains should have been found in the passage and verandah but nothing was found bythe I.O. No blood stains were found even on | 0 | 4,558 | 747 | ### 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:
there would have been considerable time gap between the point of hearing the cries of her husband and the point of time when she could gain access to the scene of occurrence. By that time, in all probability, the attack would have been over. The assailants would not have leisurely carried out the attack, especially in the midst of commotion going on in the house. Secondly, even after hearing the shouts of PW-1 and sensing her efforts to draw the attention of passers-by the accused would not have remained there still assaulting the victim, taking the risk of being sighted by PW-1 and other. 14. The attack for the second time has been narrated by her in the following words:- "I dragged him to the verandah of the Bari side house. From there I proceeded to our Bari side towards the house of Krushna Das. I called him. When Krushna Das was coming towards our house, accused persons Babaji and Mayadhar threatened him with assault in case he came to the rescue of my deceased husband. So I came to the place where my husband was lying. Again I saw accused Babaji (my father in law) assaulting my husband with a Gada and accused Mayadhar assaulting him with a sword (Khanda). I caught hold of the feet of my father-in-law accused Babaji and requested him not to assault. Thereafter accused Mayadhar dragged me and put me inside the kitchen. Again I came to the place where my husband was lying. Again accused Babaji pushed me inside the bed room. When he was about to close the door from outside I came out of the room and again shouted for help. At that time accused persons Babaji and Mayadhar threatened to kill me if I did not keep quiet. On hearing my shouts, the Gramsrakhi Kangali Jena and Sitanath Dalei arrived at the house." 15. This apart of the story also seems to be quite artificial and highly improbable. It is difficult to believe that the two accused having perpetrated a ghastly crime and having got the impression that the victim was dead could still remain there to launch another attack in spite of the shouts and cries of PW-1 even after knowing fully well that PW-1 went out to call the neighbours. Is it reasonably possible to believe that the accused would have allowed her to go out to inform the neighbours and in any case, will they wait till PW-1 returns and then launch another attack on the person who was almost dead by that time? It will be equally difficult to believe that the accused remained in the house till Krushnadas (PW-5) approached their house and threatened him with dire consequences if he came to the rescue of the deceased. Of course, PW-5 who was treated hostile witness did not support the version of PW-1. Be that as it may, what is relevant to notice is that soon after the alleged confrontation with PW-5, PW-3 and another by name Kangali Jena (Gramrakshi) came there on hearing the shouts of PW-1. It is in the evidence of PW-3 that he did not see either of the accused in the house. Either the accused were not at al there in the house or they would have left just before PW-3 and another came to the house. But, it is not the version of PW-1 that they left by that time. If the accused wanted to leave the house after the murderous attack, having regard to the ordinary course of human conduct, they should have in all probability left soon after the attack without being seen by anybody. Thus, any amount of doubt crops up whether P.W.1 had seen the actual attack or she acted on suspicion, maybe strong suspicion, about the involvement of the accused-respondents. 16. There is yet another circumstance which costs some doubt on the prosecution case. PW-1 stated that after the first attack she fed the victim with some water and then dragged him to the varandah on the back side of the house. Whether the assailants and other family members who were trying to forcefully silence P.W. 1 would have allowed her to drag and shift the body of the deceased is one aspect. If, in fact, he had been dragged, blood stains should have been found in the passage and verandah but nothing was found by PW-13, the I.O. No blood stains were found even on PW-1s dress. 17. The above facts and circumstances would give rise to a reasonable doubt whether the incident had taken place in the manner narrated by PW-1. Added to this, the conduct of PW-1 in implicating all the family members imputing them certain overt acts which were found to be unbelievable by the trial Court would cast a serious doubt on the reliability of PW-1s evidence. She went to the police station leaving the victim who was unconscious but still alive and reported against all the family members en bloc excepting the mother of the deceased who is said to be mentally unsound. Her vindictiveness and tendency to implicate innocent persons as well is apparent from this conduct. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony of PW-1, the High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. It is true that the conduct of accused persons after the incident had taken place is very unnatural and creates strong suspicion against them; but, that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of son/brother is made out. We are, therefore, not inclined to interfere with the verdict of acquittal rendered by the High Court though the reasoning of the High Court is unsatisfactory in some respects. 18.
### Response:
0
### Explanation:
17. The above facts and circumstances would give rise to a reasonable doubt whether the incident had taken place in the manner narrated byAdded to this, the conduct ofin implicating all the family members imputing them certain overt acts which were found to be unbelievable by the trial Court would cast a serious doubt on the reliability ofevidence. She went to the police station leaving the victim who was unconscious but still alive and reported against all the family members en bloc excepting the mother of the deceased who is said to be mentally unsound. Her vindictiveness and tendency to implicate innocent persons as well is apparent from this conduct. In these circumstances, if the High Court had taken the view that it is not safe to convict the accused on the basis of testimony ofthe High Court cannot be faulted for reaching this conclusion though the High Court failed to address itself to certain crucial aspects of evidence and gave undue importance to certain inconsequential matters. It is true that the conduct of accused persons after the incident had taken place is very unnatural and creates strong suspicion against them; but, that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of son/brother is made out. We are, therefore, not inclined to interfere with the verdict of acquittal rendered by the High Court though the reasoning of the High Court is unsatisfactory in someis difficult to believe the version ofPW1 that shehad seen the two accused attacking her husband. Firstly, in view of what is noticed above, there would have been considerable time gap between the point of hearing the cries of her husband and the point of time when she could gain access to the scene of occurrence. By that time, in all probability, the attack would have been over. The assailants would not have leisurely carried out the attack, especially in the midst of commotion going on in the house. Secondly, even after hearing the shouts ofand sensing her efforts to draw the attention ofthe accused would not have remained there still assaulting the victim, taking the risk of being sighted by5. This apart of the story also seems to be quite artificial and highly improbable. It is difficult to believe that the two accused having perpetrated a ghastly crime and having got the impression that the victim was dead could still remain there to launch another attack in spite of the shouts and cries ofeven after knowing fully well thatwent out to call the neighbours. Is it reasonably possible to believe that the accused would have allowed her to go out to inform the neighbours and in any case, will they wait tillreturns and then launch another attack on the person who was almost dead by that time? It will be equally difficult to believe that the accused remained in the house till Krushnadasapproached their house and threatened him with dire consequences if he came to the rescue of the deceased. Of course,who was treated hostile witness did not support the version ofBe that as it may, what is relevant to notice is that soon after the alleged confrontation with3 and another by name Kangali Jena (Gramrakshi) came there on hearing the shouts ofPW1. It isin the evidence ofthat he did not see either of the accused in the house. Either the accused were not at al there in the house or they would have left just beforeand another came to the house. But, it is not the version ofThere is yet another circumstance which costs some doubt on the prosecution case.stated that after the first attack she fed the victim with some water and then dragged him to the varandah on the back side of the house. Whether the assailants and other family members who were trying to forcefully silence P.W. 1 would have allowed her to drag and shift the body of the deceased is one aspect. If, in fact, he had been dragged, blood stains should have been found in the passage and verandah but nothing was found bythe I.O. No blood stains were found even on
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State Of Karnataka And Another Vs. M. Farida And Others | each head depends, in our opinion, upon the rule regulating the examination. In periakaruppans case it was held that the intention of the Government was that each of the specified qualities should carry equal marks. In these appeals we have not been called upon to decide whether the rule concerned in Periakaruppans case was correctly interpreted. We do not however think that it would be correct to assume as a general proposition that in e very case where the interviewing body is asked to take into consideration several specified qualities, they must be of equal value and separate marks should be allotted under each head; on the contrary, in our opinion, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test. It was observed in Periakaruppans case that conceding to the selection committee the right to award block marks would enable the selection committee to act arbitrarily and allot marks "as it pleased". It is not clear how the position is altered if the committee has to allot marks separately under each head if it wished to proceed " as it pleased". On this point it may be relevant to refer t.? what this Court said in R. Chitralekha and Anr. v. State of Mysore &Ors. ([1964] 6 S.C.R. 368 (p. 382).)"In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination, The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method is adopt ed its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it."3. We do not think that the total arrived at by adding up the separate marks awarded for the different qualities is always a true measure of a candidates suitability. An illustration from Periakaruppans case would serve to clarify the point. Of the five qualities mentioned there, suppose a candidate secures full 15 marks for extra-curricular activities but fails to get any credit under any of the other four heads, and another candidate gets a few marks under each head aggregating, say, 14 marks, one mark less than the total marks secured by the first candidate. Which of the two should be considered more qualified for admission to medical profession ? It would take great courage, we think, to hold that the candidate who secured 15 marks was more suitable.The question therefore is whether rule 9 read with Part IV of Schedule 11 of the Mysore Recruitment of Gazetted Probationers (Class I and II Posts Appointment by Competitive Examinations) Rules, 1966 required the selection committee to award separate marks for the seven qualities mentioned in Part IV. Rule 9, so far as it is relevant for the present purpose, says that the Commission shall call for a personality test five times the number of candidates as there are vacancies in the services in the order of merit on the basis of the results of written papers. Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others. Quite often with some practical aim, like selecting the most promising students for admission to particular courses or picking out the suitable ones from a group of job applicants, emphasis is laid some of the attributes. The end result may not be an assessment of the whole personality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view. Part IV of Schedule 11 which provides the details of the test calls it a personality test, the object of which is to assess the personal suitability of the candidates for the service or services for .which they have applied. The candidates will be asked questions of general interest, on the answers to which, it appears, the assessment would depend. It is further provided that the qualities to be Judged are: mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth. It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assessing the personality of the candidates. It seems hardly possible in t he test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated, Also, the test carries a maximum mark of 200; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 28 4/7 marks. This further confirms the view that Part IV of Schedule 11 never intended that separate marks should be allotted for the several qualities stated therein. Reading Rule 9 with Part IV of Schedule 11, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV.4. | 1[ds]We do not however think that it would be correct to assume as a general proposition that in e very case where the interviewing body is asked to take into consideration several specified qualities, they must be of equal value and separate marks should be allotted under each head; on the contrary, in our opinion, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test. It was observed in Periakaruppans case that conceding to the selection committee the right to award block marks would enable the selection committee to act arbitrarily and allot marks "as it pleased". It is not clear how the position is altered if the committee has to allot marks separately under each head if it wished to proceed " as it pleased". On this point it may be relevant to refer t.? what this Court said in R. Chitralekha and Anr. v. State of Mysore &Ors. ([1964] 6 S.C.R. 368 (p. 382).)"In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination, The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method is adopt ed its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashingdo not think that the total arrived at by adding up the separate marks awarded for the different qualities is always a true measure of a candidates suitability. An illustration from Periakaruppans case would serve to clarify the point. Of the five qualities mentioned there, suppose a candidate secures full 15 marks for extra-curricular activities but fails to get any credit under any of the other four heads, and another candidate gets a few marks under each head aggregating, say, 14 marks, one mark less than the total marks secured by the first candidate. Which of the two should be considered more qualified for admission to medical profession ? It would take great courage, we think, to hold that the candidate who secured 15 marks was more suitable.The question therefore is whether rule 9 read with Part IV of Schedule 11 of the Mysore Recruitment of Gazetted Probationers (Class I and II Posts Appointment by Competitive Examinations) Rules, 1966 required the selection committee to award separate marks for the seven qualities mentioned in Part IV. Rule 9, so far as it is relevant for the present purpose, says that the Commission shall call for a personality test five times the number of candidates as there are vacancies in the services in the order of merit on the basis of the results of written papers. Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others. Quite often with some practical aim, like selecting the most promising students for admission to particular courses or picking out the suitable ones from a group of job applicants, emphasis is laid some of the attributes. The end result may not be an assessment of the whole personality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view. Part IV of Schedule 11 which provides the details of the test calls it a personality test, the object of which is to assess the personal suitability of the candidates for the service or services for .which they have applied. The candidates will be asked questions of general interest, on the answers to which, it appears, the assessment would depend. It is further provided that the qualities to be Judged are: mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth. It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assessing the personality of the candidates. It seems hardly possible in t he test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated, Also, the test carries a maximum mark of 200; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 28 4/7 marks. This further confirms the view that Part IV of Schedule 11 never intended that separate marks should be allotted for the several qualities stated therein. Reading Rule 9 with Part IV of Schedule 11, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV. | 1 | 2,575 | 1,036 | ### 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:
each head depends, in our opinion, upon the rule regulating the examination. In periakaruppans case it was held that the intention of the Government was that each of the specified qualities should carry equal marks. In these appeals we have not been called upon to decide whether the rule concerned in Periakaruppans case was correctly interpreted. We do not however think that it would be correct to assume as a general proposition that in e very case where the interviewing body is asked to take into consideration several specified qualities, they must be of equal value and separate marks should be allotted under each head; on the contrary, in our opinion, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test. It was observed in Periakaruppans case that conceding to the selection committee the right to award block marks would enable the selection committee to act arbitrarily and allot marks "as it pleased". It is not clear how the position is altered if the committee has to allot marks separately under each head if it wished to proceed " as it pleased". On this point it may be relevant to refer t.? what this Court said in R. Chitralekha and Anr. v. State of Mysore &Ors. ([1964] 6 S.C.R. 368 (p. 382).)"In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination, The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method is adopt ed its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it."3. We do not think that the total arrived at by adding up the separate marks awarded for the different qualities is always a true measure of a candidates suitability. An illustration from Periakaruppans case would serve to clarify the point. Of the five qualities mentioned there, suppose a candidate secures full 15 marks for extra-curricular activities but fails to get any credit under any of the other four heads, and another candidate gets a few marks under each head aggregating, say, 14 marks, one mark less than the total marks secured by the first candidate. Which of the two should be considered more qualified for admission to medical profession ? It would take great courage, we think, to hold that the candidate who secured 15 marks was more suitable.The question therefore is whether rule 9 read with Part IV of Schedule 11 of the Mysore Recruitment of Gazetted Probationers (Class I and II Posts Appointment by Competitive Examinations) Rules, 1966 required the selection committee to award separate marks for the seven qualities mentioned in Part IV. Rule 9, so far as it is relevant for the present purpose, says that the Commission shall call for a personality test five times the number of candidates as there are vacancies in the services in the order of merit on the basis of the results of written papers. Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others. Quite often with some practical aim, like selecting the most promising students for admission to particular courses or picking out the suitable ones from a group of job applicants, emphasis is laid some of the attributes. The end result may not be an assessment of the whole personality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view. Part IV of Schedule 11 which provides the details of the test calls it a personality test, the object of which is to assess the personal suitability of the candidates for the service or services for .which they have applied. The candidates will be asked questions of general interest, on the answers to which, it appears, the assessment would depend. It is further provided that the qualities to be Judged are: mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth. It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assessing the personality of the candidates. It seems hardly possible in t he test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated, Also, the test carries a maximum mark of 200; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 28 4/7 marks. This further confirms the view that Part IV of Schedule 11 never intended that separate marks should be allotted for the several qualities stated therein. Reading Rule 9 with Part IV of Schedule 11, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV.4.
### Response:
1
### Explanation:
We do not however think that it would be correct to assume as a general proposition that in e very case where the interviewing body is asked to take into consideration several specified qualities, they must be of equal value and separate marks should be allotted under each head; on the contrary, in our opinion, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test. It was observed in Periakaruppans case that conceding to the selection committee the right to award block marks would enable the selection committee to act arbitrarily and allot marks "as it pleased". It is not clear how the position is altered if the committee has to allot marks separately under each head if it wished to proceed " as it pleased". On this point it may be relevant to refer t.? what this Court said in R. Chitralekha and Anr. v. State of Mysore &Ors. ([1964] 6 S.C.R. 368 (p. 382).)"In the field of education there are divergent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination, The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method is adopt ed its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashingdo not think that the total arrived at by adding up the separate marks awarded for the different qualities is always a true measure of a candidates suitability. An illustration from Periakaruppans case would serve to clarify the point. Of the five qualities mentioned there, suppose a candidate secures full 15 marks for extra-curricular activities but fails to get any credit under any of the other four heads, and another candidate gets a few marks under each head aggregating, say, 14 marks, one mark less than the total marks secured by the first candidate. Which of the two should be considered more qualified for admission to medical profession ? It would take great courage, we think, to hold that the candidate who secured 15 marks was more suitable.The question therefore is whether rule 9 read with Part IV of Schedule 11 of the Mysore Recruitment of Gazetted Probationers (Class I and II Posts Appointment by Competitive Examinations) Rules, 1966 required the selection committee to award separate marks for the seven qualities mentioned in Part IV. Rule 9, so far as it is relevant for the present purpose, says that the Commission shall call for a personality test five times the number of candidates as there are vacancies in the services in the order of merit on the basis of the results of written papers. Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others. Quite often with some practical aim, like selecting the most promising students for admission to particular courses or picking out the suitable ones from a group of job applicants, emphasis is laid some of the attributes. The end result may not be an assessment of the whole personality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view. Part IV of Schedule 11 which provides the details of the test calls it a personality test, the object of which is to assess the personal suitability of the candidates for the service or services for .which they have applied. The candidates will be asked questions of general interest, on the answers to which, it appears, the assessment would depend. It is further provided that the qualities to be Judged are: mental alertness, critical powers of assimilation, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth. It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assessing the personality of the candidates. It seems hardly possible in t he test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated, Also, the test carries a maximum mark of 200; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 28 4/7 marks. This further confirms the view that Part IV of Schedule 11 never intended that separate marks should be allotted for the several qualities stated therein. Reading Rule 9 with Part IV of Schedule 11, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV.
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SAJAN SETHI Vs. RAJAN SETHI | be constructed on this second-floor landing which opens directly to the back portion of the second-floor of the suit property falling to the share of the respondent-plaintiff. 15. The appeal is accordingly disposed of in terms of the aforesaid directions, leaving the parties to bear their own costs. 6. We have heard Sri Vikas Singh, learned senior counsel appearing for the appellant-defendant and Sri P.S. Patwalia, learned senior counsel appearing for the respondent-plaintiff. 7. Mainly, it is contended by Sri Vikas Singh, learned senior counsel for the appellant-defendant, that the Trial Court and the First Appellate Court committed an error in deciding the rights of parties in respect of the common areas in the ground floor, when the suit itself was filed, confined to the partition of second floor and terrace rights. It is further contended that in any event, as the entire property is divided between the respondent-plaintiff and appellant- defendant in equal share, the appellant-defendant is also entitled for 50% of the common areas in the ground floor. 8. On the other hand, Sri P.S. Patwalia, learned senior counsel appearing for the respondent, has submitted that it was the appellant-defendant, who in the written statement had raised a dispute in respect of common areas, as such the Trial Court has framed the issue on the common areas and decided the same. It is submitted that in view of the limited rights granted for maintenance of the booster pump/motor installed in the ground floor, no other right is conferred on the appellant-defendant in the common areas in the ground floor. It is further submitted that having regard to pleadings and evidence on record, the Trial Court as well as the Appellate Court, have rightly decided the claim of the appellant-defendant in respect of the common areas also and there are no grounds to interfere with the same. 9. It is true that the suit filed by the respondent -plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the appellant- defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. The parties are claiming rights to the property pursuant to a Will dated 27.01.2005. As per the recitals of the Will, the respondent-plaintiff and the appellant-defendant are entitled to the property in question as indicated in the Will and relevant portion of the same is already extracted above. 10. The Trial Court, had to frame an issue in view of the claim made by the appellant-defendant in respect of the common areas also. The High Court has found that normally a driveway on the ground floor of the property would be a common area. But in the peculiar facts of the present case, the suit property also has a side lane from which there is a direct entrance to the staircase, which takes the appellant-defendant to his first-floor portion. In that view of the matter, it is found that the appellant-defendant cannot claim any right to use the driveway from front side. It is clear from the record that the suit property is situated on a corner plot and on one side there is a main road of the colony and on another side of the property, there is a side lane, and such side lane itself abuts a park. The side lane also is not a thoroughfare and on both sides of the lane there are gates regulated by the colony residents. However, the High Court has also taken care to ensure that the appellant-defendant has necessary access to the pipes and booster pump/motor in the rear courtyard. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for theappellant-defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit. 11. Having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas. From the material and the evidence placed on record, we find that the judgment and final decree for partition, as ordered by the Appellate Court and directions issued with regard to common areas are in accordance with evidence on record and we do not find any merit in these appeals so as to interfere with the same. 12. For the aforesaid reasons, we do not find any merit in these appeals and they are to be dismissed. Before we order to do so, we deem it appropriate to extract the following two paragraphs of the Will dated 27.01.2005, executed by their mother late Smt. Krishna Sethi:- As life is uncertain and in order to avoid any differences or dispute by and between my legal heirs, I feel it proper and expedient to put on record my last wishes so that there is no discord or enmity or differences amongst my children/legal heirs for the division of assets which I may leave behind after my demise. I am at present suffering from certain incurable disease and have recently been hospitalised and I may require further hospitalisation and I am now aged about 74 years and although I am in my full senses and understand right and wrong. Last but not the least I bestow my all blessing, love affection to my all children and their families and as them of the same from my and my late husband when we are in the heavens and continue to pray for their well being and shall desire that my all children with their family should always remain united and live the way as I and my husband have lived. My greeting for the family, brothers and sisters and the children – God may help all. | 0[ds]9. It is true that the suit filed by the respondent -plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the appellant- defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. The parties are claiming rights to the property pursuant to a Will dated 27.01.2005. As per the recitals of the Will, the respondent-plaintiff and the appellant-defendant are entitled to the property in question as indicated in the Will and relevant portion of the same is already extracted above10. The Trial Court, had to frame an issue in view of the claim made by the appellant-defendant in respect of the common areas also. The High Court has found that normally a driveway on the ground floor of the property would be a common area. But in the peculiar facts of the present case, the suit property also has a side lane from which there is a direct entrance to the staircase, which takes the appellant-defendant to his first-floor portion. In that view of the matter, it is found that the appellant-defendant cannot claim any right to use the driveway from front side. It is clear from the record that the suit property is situated on a corner plot and on one side there is a main road of the colony and on another side of the property, there is a side lane, and such side lane itself abuts a park. The side lane also is not a thoroughfare and on both sides of the lane there are gates regulated by the colony residents. However, the High Court has also taken care to ensure that the appellant-defendant has necessary access to the pipes and booster pump/motor in the rear courtyard. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for theappellant-defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit11. Having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas. From the material and the evidence placed on record, we find that the judgment and final decree for partition, as ordered by the Appellate Court and directions issued with regard to common areas are in accordance with evidence on record and we do not find any merit in these appeals so as to interfere with the same12. For the aforesaid reasons, we do not find any merit in these appeals and they are to be dismissed. Before we order to do so, we deem it appropriate to extract the following two paragraphs of the Will dated 27.01.2005, executed by their mother late Smt. Krishna Sethi:-As life is uncertain and in order to avoid any differences or dispute by and between my legal heirs, I feel it proper and expedient to put on record my last wishes so that there is no discord or enmity or differences amongst my children/legal heirs for the division of assets which I may leave behind after my demise. I am at present suffering from certain incurable disease and have recently been hospitalised and I may require further hospitalisation and I am now aged about 74 years and although I am in my full senses and understand right and wrongLast but not the least I bestow my all blessing, love affection to my all children and their families and as them of the same from my and my late husband when we are in the heavens and continue to pray for their well being and shall desire that my all children with their family should always remain united and live the way as I and my husband have lived. My greeting for the family, brothers and sisters and the children – God may help all. | 0 | 2,111 | 737 | ### 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:
be constructed on this second-floor landing which opens directly to the back portion of the second-floor of the suit property falling to the share of the respondent-plaintiff. 15. The appeal is accordingly disposed of in terms of the aforesaid directions, leaving the parties to bear their own costs. 6. We have heard Sri Vikas Singh, learned senior counsel appearing for the appellant-defendant and Sri P.S. Patwalia, learned senior counsel appearing for the respondent-plaintiff. 7. Mainly, it is contended by Sri Vikas Singh, learned senior counsel for the appellant-defendant, that the Trial Court and the First Appellate Court committed an error in deciding the rights of parties in respect of the common areas in the ground floor, when the suit itself was filed, confined to the partition of second floor and terrace rights. It is further contended that in any event, as the entire property is divided between the respondent-plaintiff and appellant- defendant in equal share, the appellant-defendant is also entitled for 50% of the common areas in the ground floor. 8. On the other hand, Sri P.S. Patwalia, learned senior counsel appearing for the respondent, has submitted that it was the appellant-defendant, who in the written statement had raised a dispute in respect of common areas, as such the Trial Court has framed the issue on the common areas and decided the same. It is submitted that in view of the limited rights granted for maintenance of the booster pump/motor installed in the ground floor, no other right is conferred on the appellant-defendant in the common areas in the ground floor. It is further submitted that having regard to pleadings and evidence on record, the Trial Court as well as the Appellate Court, have rightly decided the claim of the appellant-defendant in respect of the common areas also and there are no grounds to interfere with the same. 9. It is true that the suit filed by the respondent -plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the appellant- defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. The parties are claiming rights to the property pursuant to a Will dated 27.01.2005. As per the recitals of the Will, the respondent-plaintiff and the appellant-defendant are entitled to the property in question as indicated in the Will and relevant portion of the same is already extracted above. 10. The Trial Court, had to frame an issue in view of the claim made by the appellant-defendant in respect of the common areas also. The High Court has found that normally a driveway on the ground floor of the property would be a common area. But in the peculiar facts of the present case, the suit property also has a side lane from which there is a direct entrance to the staircase, which takes the appellant-defendant to his first-floor portion. In that view of the matter, it is found that the appellant-defendant cannot claim any right to use the driveway from front side. It is clear from the record that the suit property is situated on a corner plot and on one side there is a main road of the colony and on another side of the property, there is a side lane, and such side lane itself abuts a park. The side lane also is not a thoroughfare and on both sides of the lane there are gates regulated by the colony residents. However, the High Court has also taken care to ensure that the appellant-defendant has necessary access to the pipes and booster pump/motor in the rear courtyard. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for theappellant-defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit. 11. Having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas. From the material and the evidence placed on record, we find that the judgment and final decree for partition, as ordered by the Appellate Court and directions issued with regard to common areas are in accordance with evidence on record and we do not find any merit in these appeals so as to interfere with the same. 12. For the aforesaid reasons, we do not find any merit in these appeals and they are to be dismissed. Before we order to do so, we deem it appropriate to extract the following two paragraphs of the Will dated 27.01.2005, executed by their mother late Smt. Krishna Sethi:- As life is uncertain and in order to avoid any differences or dispute by and between my legal heirs, I feel it proper and expedient to put on record my last wishes so that there is no discord or enmity or differences amongst my children/legal heirs for the division of assets which I may leave behind after my demise. I am at present suffering from certain incurable disease and have recently been hospitalised and I may require further hospitalisation and I am now aged about 74 years and although I am in my full senses and understand right and wrong. Last but not the least I bestow my all blessing, love affection to my all children and their families and as them of the same from my and my late husband when we are in the heavens and continue to pray for their well being and shall desire that my all children with their family should always remain united and live the way as I and my husband have lived. My greeting for the family, brothers and sisters and the children – God may help all.
### Response:
0
### Explanation:
9. It is true that the suit filed by the respondent -plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the appellant- defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. The parties are claiming rights to the property pursuant to a Will dated 27.01.2005. As per the recitals of the Will, the respondent-plaintiff and the appellant-defendant are entitled to the property in question as indicated in the Will and relevant portion of the same is already extracted above10. The Trial Court, had to frame an issue in view of the claim made by the appellant-defendant in respect of the common areas also. The High Court has found that normally a driveway on the ground floor of the property would be a common area. But in the peculiar facts of the present case, the suit property also has a side lane from which there is a direct entrance to the staircase, which takes the appellant-defendant to his first-floor portion. In that view of the matter, it is found that the appellant-defendant cannot claim any right to use the driveway from front side. It is clear from the record that the suit property is situated on a corner plot and on one side there is a main road of the colony and on another side of the property, there is a side lane, and such side lane itself abuts a park. The side lane also is not a thoroughfare and on both sides of the lane there are gates regulated by the colony residents. However, the High Court has also taken care to ensure that the appellant-defendant has necessary access to the pipes and booster pump/motor in the rear courtyard. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for theappellant-defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit11. Having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas. From the material and the evidence placed on record, we find that the judgment and final decree for partition, as ordered by the Appellate Court and directions issued with regard to common areas are in accordance with evidence on record and we do not find any merit in these appeals so as to interfere with the same12. For the aforesaid reasons, we do not find any merit in these appeals and they are to be dismissed. Before we order to do so, we deem it appropriate to extract the following two paragraphs of the Will dated 27.01.2005, executed by their mother late Smt. Krishna Sethi:-As life is uncertain and in order to avoid any differences or dispute by and between my legal heirs, I feel it proper and expedient to put on record my last wishes so that there is no discord or enmity or differences amongst my children/legal heirs for the division of assets which I may leave behind after my demise. I am at present suffering from certain incurable disease and have recently been hospitalised and I may require further hospitalisation and I am now aged about 74 years and although I am in my full senses and understand right and wrongLast but not the least I bestow my all blessing, love affection to my all children and their families and as them of the same from my and my late husband when we are in the heavens and continue to pray for their well being and shall desire that my all children with their family should always remain united and live the way as I and my husband have lived. My greeting for the family, brothers and sisters and the children – God may help all.
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